SZMOX v Minister for Immigration and Border Protection

1. The appeals be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 Before the Court are two appeals against decisions of the Federal Circuit Court dated 9 March 2018. In each case the primary Judge dismissed an application for review of a decision of an officer of the then Department of Immigration and Border Protection (the Department), being a delegate of the Minister, rejecting the lodgement of the relevant appellant's protection visa application. The visa applications were rejected for lodgement because they were not valid protection visa applications as a result of s 48A of the Migration Act 1958 (Cth) (the Act). 2 The appellants in each of the matters are brothers. The appellants and the Minister rely on the same substantive submissions in each appeal. The notices of appeal raise identical grounds of appeal and the appeals were heard together.

Background 3 The appellants are citizens of the Republic of Korea who arrived in Australia on 14 November 2004. The appellants accompanied their parents, who at the relevant time held business visas. 4 On 5 September 2006, the appellants' parents lodged an application for a protection visa, and the appellants were included in that application as members of the family unit. That application was refused by a delegate of the Minister on 18 October 2006. The appellants' family unsuccessfully sought review of the decision by the then Refugee Review Tribunal in 2007. 5 On 11 March 2014, the appellants each lodged a further protection visa application, both of which were refused by a delegate of the Minister on 1 October 2014. The appellants applied for review of those decisions by the Tribunal on 25 October 2014, and the Tribunal affirmed the decisions not to grant the visa on 12 February 2017. 6 The appellants again purported to lodge protection visa applications dated 19 May 2016. By letters dated 1 June 2016, an officer of the Department rejected the appellants' protection visa applications, stating that s 48A of the Act prevented the appellants from making further applications because decisions had previously been made to refuse applications for protection visas.

Proceedings in the Federal Circuit Court 7 In the Federal Circuit Court of Australia the appellants sought review of the determinations of the Minister's delegate of 1 June 2016, identifying the following grounds of review: 1. The Delegate made a jurisdiction error by failing to exercise jurisdiction. a. At the time of the earlier 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 Sch 1 to the Regulation took effect on 20 October 1999; b. Item 1401 of Sch 1 to the Regulations, by virtue of s 49A(1)(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 it existed after item 1401 took effect. 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; c. 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 earlier application was not invalid and the later application was not barred by s 48A of the Act. (Formatting removed.) 8 The primary Judge refused both applications in short - and substantially identical - judgments. In each case his Honour stated as follows: 3. In his application for judicial review, the applicant claims the officer was wrong to reject the application for a protection visa because the application for a protection visa which the applicant had previously lodged on 11 March 2014, and which had been rejected, was itself not a valid application for a visa. The ground on which the applicant claims the previous application for a protection visa was not a valid application for a protection visa is that the only valid form the applicant could have used to make an application was Form 866 as it existed as at 20 October 1999, but the applicant used a different version of Form 866 which the Minister had purportedly approved after 1999. 4. The submissions in support of this ground are extensive. It is unnecessary, however, for me to set out these submissions or consider them because submissions to the same effect have been considered and rejected, not only by judges of this Court, but also by Burley J in the Federal Court. Given the judgments of Burley J, the application is bound to fail. (Footnotes omitted.) 9 In so finding his Honour relied on BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205; BLR15 v Minister for Immigration and Border Protection [2018] FCA 67; CNP16 v Minister for Immigration and Border Protection [2018] FCA 65; CDI15 v Minister for Immigration and Border Protection [2018] FCA 58.

The grounds of appeal 10 The grounds of appeal on which the appellants rely are as follows: 1. The primary judge, while bound by authority to do so, erred in dismissing the application as the Minister had no power under s 48A of the Migration Act 1958 (Cth) to refuse to consider the Appellant's second application for a protection visa lodged on 23 May 2016. Particulars a. It was common ground that the Applicant, when his first application for a protection visa was lodged on11 March 2014 (first application), had used version of Form 866 which was created after 20 October 1999; b. 20 October 1999 was the date on which item 1401 of Sch 1 to the Migration Regulations 1994 (Cth), which stipulated Form 866 as the form required for completion in order to apply for a protection visa, took effect; c. Item 1401 adopted Form 866 as "any other instrument or writing" within the meaning of s 49A of the Acts Interpretation Act 1901 (Cth) and / or s 14 of the Legislation Act 2003 (Cth); d. Item 1401 was, therefore, prohibited from adopting Form 866 as it existed from time to time but was instead restricted to adopting Form 866 as it existed on 20 October 1999; e. As the Applicant used version of Form 866 not embraced by item 1401, the first application was invalid, with the result that the Minister was not entitled to invoke s 48A of the Act in relation to the second application. f. The Honourable Justice Burley rejected the above reasoning in BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205; g. It is submitted, with great respect, that his Honour's decision was wrong and, while the primary judge was bound to apply the decision, it out not be followed by the Full Court in the present case.

Relevant legislation 11 Section 48A of the Act materially provides: No further applications for protection visa after refusal or cancellation (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. 12 Section 14 of the Legislation Act 2003 (Cth) (the Legislation Act) currently provides: Prescribing matters for reference to other instruments (1) If enabling legislation authorises or requires provision to be made in relation to any matter by a legislative instrument or notifiable instrument, the instrument may, unless the contrary intention appears, make provision in relation to that matter: (a) by applying, adopting or incorporating, with or without modification, any of the following, as in force at a particular time or as in force from time to time: (i) the provisions of an Act; (ii) the provisions of a legislative instrument covered by subsection (3); or (b) subject to subsection (2), by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or writing as in force or existing at the time when the first-mentioned instrument commences. (2) Unless the contrary intention appears, the legislative instrument or notifiable instrument may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time. (3) The following legislative instruments are covered by this subsection: (a) disallowable legislative instruments; (b) legislative instruments that were disallowable under the Acts Interpretation Act 1901 or any other Act at any time before 1 January 2005. Note: The substantive provisions of this Act commenced on 1 January 2005. (4) If a legislative instrument or notifiable instrument provides for a form to be used, this section does not apply in relation to the form. Note: This section has a parallel, in relation to instruments that are not legislative instruments, in section 46AA of the Acts Interpretation Act 1901. 13 Section 14(4) was inserted by item 3 of Sch 3 to the Acts and Instruments (Framework Reform) (Consequential Provisions) Act 2015 (Cth) and commenced on 5 March 2016. It was common ground that s 14(4), the introduction of which predated each appellant's relevant visa application, has no application in either appeal. 14 Section 14 of the Legislation Act was not in force at the time item 1401 to Sch 1 of the Migration Regulations 1994 (Cth) (the Regulations) was made, however earlier equivalent legislation in substantially identical terms was in force. Section 49A of the Acts Interpretation Act 1901 (Cth) (the Acts Interpretation Act) provided: (1) Where an Act authorizes [sic] or requires provision to be made for or in relation to any matter by regulations, the regulations may, unless the contrary intention appears, make provision for or in relation to that matter by applying, adopting or incorporating, with or without modification: (a) the provisions of any Act, or of any regulations, as in force at a particular time or as in force from time to time; or (b) any matter contained in any other instrument or writing as in force or existing at the time when the first-mentioned regulations take effect; but, unless the contrary intention appears, regulations shall not, except as provided by this subsection, make provision for or in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time. (2) In this section, regulations means regulations or rules under an Act. 15 Finally, at material times, item 1401 of the Regulations identified the applicable form for the protection visa applications as follows: (1) Form: 866

The appellant's submissions 16 The appellants submit that s 48A of the Act has no application in relation to the protection visa applications lodged by them in 2016, because the form that they both used for their previous visa applications was not able to be the basis for a valid protection visa application. 17 This construction would require the Court to overturn the reasoning in BVJ16, and the appellant contends that the Court should do so. 18 In summary, the appellants submit: The prima facie effect of s 49A of the Acts Interpretation Act on item 1401 at the time it was made, and subsequently of s 14 of the Legislation Act, was that item 1401 could not perform an ambulatory incorporation by reference to Form 866 so as to include the version of Form 866 used by the appellants. Form 866 was not itself a regulation within the meaning of s 49A(1)(a) of the Acts Interpretation Act or a disallowable legislative instrument within the meaning of s 14(1)(a). Form 866 was an instrument or writing within the meaning of those sections and could only be the subject of a fixed incorporation by reference as at the time when item 1401 took effect, namely on 20 October 1999. Item 1401 should be read down so that it is limited to Form 866 to the extent it existed on 20 October 1999. It followed that the visa application filed by the appellants can be taken to be invalid in circumstances where they did not use the Form 866 as it existed on 20 October 1999. The Court should not follow the reasoning in BVJ16. It is no answer for the Minister to submit that the versions of Form 866 used by the appellants were substantially the same as Form 866 as it existed on 20 October 1999 Section 14(4) of the Legislation Act only has prospective operation and does not apply in respect of events which took place before that date. 19 The appellant also referred to s 504(2) of the Act which provides: Section 14 of the Legislative Instruments Act 2003 does not prevent, and has not prevented, regulations whose operation depends on a country or other matter being specified or certified by the Minister in an instrument in writing made under the regulations after the taking effect of the regulation. 20 The appellants accepted that s 504(2) of the Act concerned the power of the Regulations to enable the Minister to specify or verify particular matters, however the section did not support the ambulatory interpretation of Form 866 by reference to item 1401.

The Minister's submissions 21 The Minister submits that the reasoning in BVG16 is correct because, inter alia, Item 1401 leaves "Form 866" to be ascertained by identifying what is a "Form 866" approved by the Minister at the relevant time. There is no practical or sensible reason why any specific version of Form 866 would need to be incorporated into the Regulations The approach to statutory construction that has been endorsed by the High Court is set out in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47].

Consideration 22 The primary Judge, in dismissing the applications before his Honour, relied on the decision of Burley J in BVJ16. BVJ16 involved an application for a protection visa under s 36 of the Act. The appellant in that case applied for review of the decision in the Federal Circuit Court, claiming that the Tribunal had no jurisdiction to refuse his application and that its decision was, accordingly, a nullity. In particular, the appellant had lodged the version of Form 866 that was approved at the time of making his application, but argued that no valid application could be made unless the appellant filed the version of the Form 866 as approved at the time the Regulations were implemented, being 20 October 1999. 23 The Federal Circuit Court dismissed the application, and the appellant appealed to the Federal Court. The appellant's submissions in the Federal Court were summarised by Burley J as follows: 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 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. 24 His Honour continued: 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) 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. 25 The reasoning in BVJ16 has been followed subsequently in 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; AUM17 v Minister for Immigration and Border Protection [2018] FCA 306; SZLZS v Minister for Immigration and Border Protection [2018] FCA 748; CHY16 v Minister for Immigration and Border Protection [2017] FCA 1390. 26 At the hearing Mr Jones for the appellants submitted that the Court should not follow BVJ16 because, in summary: (1) Burley J was wrong in finding that s 14(1) of the Legislation Act was not engaged in that case, because item 1401 in Sch 1 to the Regulations had "applied, adopted or incorporated" Form 866 as it was on 20 October 1999; and (2) No contrary intention was manifested by the terms of the Act. 27 We reject these submissions. Indeed, there is little we can usefully add to the analysis of Burley J in BVJ16. 28 Section 14(1) of the Legislation Act is not engaged in these appeals. We do not consider that "Form: 866" constitutes "any matter contained in any other instrument or writing as in force or existing at the time when the first mentioned legislative instrument takes effect" within the meaning of s 14(1)(b), such that it could be applied, adopted or incorporated into item 1401 in Sch 1 to the Regulations. As the Minister correctly submitted, item 1401 refers to Form 866, and leaves the form to be ascertained by identifying what is "Form 866" approved by the Minister at the relevant time. 29 It is not in dispute that different, approved versions of Form 866 have existed concurrently, both before and after 20 October 1999. The reference to the form number simply provides the necessary certainty about which form an applicant should use when making the relevant visa application. 30 Further, even if Form 866 was such "writing as in force at the relevant time" to attract s 14(1)(b) as submitted by the appellants, we endorse the reasoning of Burley J in BVJ16 to the effect that the Act manifests an intention contrary to the application, adoption or incorporation of Form 866 as it existed on 20 October 1999. The Minister has power under s 495 of the Act to approve a form for the purposes of a provision of the Act. As pointed out by the Full Court in SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 27; (2012) 201 FCR 1 at [23], the Minister's power under s 495 to approve a form is not confined, and the Minister can approve more than one form for the purposes of a specific provision of the Act. Provided the approval for a relevant form has not been revoked, a form approved pursuant to s 495 could be used in an application: MZAIC v Minister for Immigration and Border Protection [2016] FCAFC 25; (2016) 237 FCR 156 at [51]. This unconfined power and the possibility of multiple versions of an approved Form co-existing under the Regulations, strongly suggests that Form 866 as at 20 October 1999 was not incorporated into the statutory regime. 31 Further, as Mr Markus for the Minister submitted, the inconvenience of having a form set in time while the visas and criteria in the Act and Regulations constantly change is indicative of a contrary intention within the meaning of s 14(1). 32 We can identify no flaw in the analysis of Burley J in BVJ16, or the primary Judge in this case in applying BVJ16. 33 In our view, the appropriate order is to dismiss the appeal with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Collier, Barker and Davies.