DUY18 v Minister for Home Affairs

1. The application for an extension of time in which to file a notice of appeal be refused with costs.
2. These orders not be formally entered prior to the publication of reasons for judgment.
3. The matter be set down for publication of reasons on Tuesday 24 September 2019 at 2:15pm. 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 and leave to appeal against orders made by a judge of the Federal Circuit Court of Australia on 30 April 2019 dismissing an application for judicial review of a decision of a delegate of the Minister made on 23 July 2018. 2 The letter from the Department of Home Affairs to the applicant, which notified him of that decision, indicated that the protection visa application filed by the applicant on 18 July 2018 (the present visa application) was not valid either because a decision had previously been made to refuse to grant him a protection visa or because a previous protection visa of his had been cancelled. That letter also stated that s 48A of the Migration Act 1958 (Cth) (the Act) prevents a person who has not left Australia since their protection visa was refused or cancelled from making a subsequent protection visa application while they remain in Australia unless the Minister personally decides under s 48B of the Act that it is in the public interest to allow that person to apply again for a protection visa. 3 The primary judge concluded that the applicant had no reasonable prospect of successfully prosecuting the proceeding and summarily dismissed the application pursuant to s 17A(2) of the Federal Circuit Court of Australia Act 1999 (Cth). Due to the operation of s 24(1A) and s 24(1D)(ca) of the Federal Court of Australia Act 1976 (Cth), the applicant required leave to appeal that decision, with such leave to be applied for within 14 days, pursuant to r 35.13 of the Federal Court Rules 2011 (Cth). The applicant was ten days out of time and therefore also requires an extension of time within which to apply for leave to appeal. 4 The Minister opposes the application. 5 It is helpful to summarise the procedural history of the applicant. The applicant is a citizen of the People's Republic of China and arrived in Australia in April 1997 on a visitor visa. He lodged his first application for a protection visa before the expiration of his visitor visa (the first visa application). The first visa application was refused by a delegate in June 1997, which refusal was affirmed by the then Refugee Review Tribunal in December 1998. The applicant lodged a second application for a protection visa in December 2013 (the second visa application) after the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235. The second visa application was refused in June 2014, which refusal was affirmed by the Administrative Appeals Tribunal (the Tribunal) in December 2015. The applicant's application to the Federal Circuit Court for review of the Tribunal's decision was dismissed with costs in November 2016. 6 The applicant then lodged a third protection visa application on 18 July 2018, which is the present visa application that is the subject of these proceedings. After receiving the notification of invalidity from the Department on 23 July 2018, the applicant applied to the Federal Circuit Court for judicial review of the delegate's decision on 24 July 2018. The following four grounds, which are presented without alteration, were raised in that application: 1. The decision dated 23 July 2018 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. 7 The primary judge correctly identified, at [21] of the reasons, that the second ground was the essence of the applicant's contention. That ground asserted that, because the applicant's second protection visa application was made using a version of Form 866 which was not incorporated into the Migration Regulations 1994 (Cth) and which therefore could not be used for that purpose, s 48A of the Act did not apply to prevent the present visa application. As noted by the primary judge at [22]-[26] of the reasons, and indeed the applicant himself in the third and fourth grounds of the application, the argument contained in the second ground has been considered, and rejected, in numerous cases, including: the decision of Burley J in BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205 (BVJ16) in which a ground that was the same in essential respects as the applicant's second ground was rejected; the decision of the Full Court of the Federal Court in SZMOX v Minister for Immigration and Border Protection [2018] FCAFC 121 (SZMOX) which approved the approach taken by Burley J in BVJ16; and a considerable number of other single-judge decisions of the Federal Court. 8 As the applicant did not provide any basis upon which the reasoning in BVJ16 or SZMOX ought to be distinguished, the primary judge considered at [29]-[32] of the reasons that the applicant's judicial review application did not identify any ground of review that would give rise to an arguable cause of action and that there was nothing to suggest, given the operation of s 48A of the Act, that the present visa application was a valid protection visa application. The application was therefore summarily dismissed. 9 The application for an extension of time and leave to appeal raises the following three grounds, which are presented without alteration: 1. The first and the Second Respondents failed to consider the risk of significant harm to the applicant due to the imputation of a political opinion to the Applicants by the Chinese authorities and the most probable consequences on their forced return to China due to their forbidden practices of their religion. 2. The Second Respondent failed to exercise discretion and did not take into account of all relevant considerations in making the determination. 3. The Second Respondent denied the applicant natural justice or procedural fairness in making the determination. 10 The applicant's affidavit affirmed on 22 May 2019, which I will take as read, annexes what appears to be an incomplete draft notice of appeal, which contains only the three following grounds, again presented without alteration: 3. Burley J. of the Federal Court of Australia dismissed a decision of this Court raising relevantly identical issues - namely BVJ16 v. MIBP 2017. 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. 11 In written submissions, solicitors for the Minister indicated that a complete copy of the draft notice of appeal was emailed to them on 30 August 2019. A copy of the complete notice of appeal was handed up by the Minister at the hearing of the application on 18 September 2019. The two missing grounds of appeal were in identical terms to the first two grounds contained in the applicant's application for extension of time and leave to appeal (see [9]). 12 No written submissions were filed by the applicant in support of the application. The applicant appeared at the hearing on 18 September 2019 but made no further oral argument when offered the opportunity to do so. 13 The Minister, while accepting that no prejudice would be suffered were the extension of time to be granted, has submitted that the absence of any explanation for the applicant's delay should weigh against an order extending time in the interests of the administration of justice. I propose to resolve this matter by reference to whether there is any basis upon which it could be considered that the primary judge fell into error. 14 The first ground in the application for an extension of time and leave to appeal purports to justify the applicant's substantive claim for protection and does not engage with the matters raised by the primary judge. The second and third grounds merely assert a failure to take into account all relevant considerations and a denial of procedural fairness without further substantiation. 15 The primary judge plainly took the core contention put forward by the applicant and assessed it against the body of existing authority on the question, which was, with respect, correctly considered to demonstrate a clear position contrary to the position being advanced by the applicant. Before the primary judge, and before this Court, the applicant has not sought to distinguish the present case from those authorities. 16 It followed from the existence, and rejection, of the second visa application that the present visa application would fall within the operation of s 48A(1) of the Act, which is in the following terms: 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. 17 The consequences of the operation of s 48A(1) are clearly expressed in the statute and no s 48B considerations arise on the available evidence. There appears to be no basis to consider that the approach of the primary judge referred to at [7] and [8] above was in error. 18 It follows that the present visa application made to the Department was not valid and the primary judge's decision to dismiss the matter summarily for want of reasonable prospect of success also discloses no error. 19 Accordingly, at the hearing of this matter on 18 September 2019, I made an order that the application for an extension of time in which to file an application for leave to appeal be refused with costs. I also ordered that the orders of the Court not be formally entered until these reasons for judgment were published today. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop.