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[2018] FCA 748
Federal Court of Australia
2018-05-24
Reeves J
Original judgment source is linked above.
THE EARLIER PROTECTION VISA APPLICATION 1 The appellant is a citizen of Pakistan. He arrived in Australia on 27 April 2007. On 4 June 2007, he applied under s 65 of the Migration Act 1958 (Cth) (the Act) to the then Department of Immigration and Citizenship for a Protection (Class XA) visa. When that application was refused by a delegate of the Minister, the appellant applied to the then extant Refugee Review Tribunal (the Tribunal) for a merits review of that decision. The Tribunal dismissed that application in 2008. Following that dismissal, the appellant applied to the Federal Magistrates Court of Australia (the predecessor to the Federal Circuit Court of Australia) for a judicial review of the Tribunal's decision. Upon failing in that application ([2008] FMCA 1092), the appellant unsuccessfully appealed that decision to this Court ([2008] FCA 1690) and then unsuccessfully sought special leave to appeal this Court's decision to the High Court of Australia ([2009] HCASL 126).
THE ATTEMPT TO REPEAT THE PROCESS 2 Approximately eight years after that process finally came to an end, the appellant attempted to repeat it, at least in part. This appeal concerns that attempt. He began that attempt on 20 February 2017, by again applying to the successor to the Department of Immigration and Citizenship, the Department of Immigration and Border Protection (the Department), for a protection visa. On 22 February 2017, an officer of the Department rejected that application as invalid, relying upon s 48A of the Act. That section relevantly provides: (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. 3 Under s 48B, the Minister may determine that s 48A does not apply. There has been no such determination made with respect to the appellant. 4 Following the rejection of his new application, the appellant sought judicial review of that decision in the Federal Circuit Court of Australia (SZLZS v Minister for Immigration [2017] FCCA 2578). Before that Court, the appellant argued that s 48A of the Act did not apply to him because the version of the form he used to make his 2007 application (Form 866) was in a different form to that originally prescribed by the Migration Regulations 1994 (Cth).
THE PRIMARY JUDGE'S DECISION 5 The primary Judge rejected that argument on the ground that a substantially identical argument had earlier been rejected by that Court and, more significantly, by a series of decisions of this Court that was binding on him, commencing with the decision of Burley J in BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205 (BVJ16) (see also APU17 v Minister for Immigration and Border Protection [2018] FCA 56, AJB15 v Minister for Immigration and Border Protection [2018] FCA 57, CDI15 v Minister for Immigration and Border Protection [2018] FCA 58, CNP16 v Minister for Immigration and Border Protection [2018] FCA 65, SZMOV v Minister for Immigration and Border Protection [2018] FCA 66, BLR15 v Minister for Immigration and Border Protection [2018] FCA 67 and AUM17 v Minister for Immigration and Border Protection [2018] FCA 306).
BVJ16 6 In BVJ16, Burley J set out the details of the argument put by the appellant in that matter, and relied upon by the appellant in this matter, in the following terms: 17 Applied to the facts of the present case, the appellant contends that the form of application for his Visa was prescribed by the operation of s 46 of the Act, which by s 46(3) provides that the Regulations may prescribe criteria to be satisfied for a valid application. Regulation 2.07 requires that an approved form must be completed and Schedule 1, Item 1401 to the regulations specifies that for a Protection (Class XA) Visa it must be Form 866. 18 By this scheme, the appellant contends that the legislation incorporated Form 866 by reference into reg 2.07. Section 14 of the Legislation Act 2003 (Cth) then swings into operation and by its terms unless the contrary intention otherwise appears, only Form 866 as it existed at the time that reg 2.07 was introduced into the regulations (on 20 October 1999) (the 1999 Form) can constitute a valid form. No such contrary intention is apparent from either the Act or the Regulations. 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. 7 Thereafter, his Honour explained the two reasons why that argument should be rejected (at [20]-[28]). He then summarised his conclusions as follows: 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. 8 When asked at the hearing of this matter why the decision in BVJ16 was incorrect, the appellant was unable to advance any reason. This is unsurprising, not because, as a self-represented lay person, the appellant was unlikely to be able to respond to this question, but because, having examined that decision, I consider, with respect, that it is plainly correct. It necessarily follows that the primary Judge did not commit any error in following BVJ16 and rejecting the appellant's application.
CONCLUSION 9 For these reasons, this appeal should be dismissed and the appellant ordered to pay the first respondent's costs. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.
SZLZS
Minister for Immigration and Border Protection