FEDERAL COURT OF AUSTRALIA

BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    In these proceedings the appellant appeals from the judgment and orders made by the Federal Circuit Court of Australia (FCCA) on 2 February 2017 dismissing the appellant’s application for judicial review of the decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal had affirmed the decision of a delegate of the first respondent (delegate) not to grant the appellant a Protection (Class XA) (Visa) pursuant to s 36 of the Migration Act 1958 (Cth) (Act).

2    The appellant was found by the Tribunal to be a citizen of Bangladesh. His application for the Visa was based on asserted fears of being persecuted by a political organisation in Bangladesh because of his imputed political opinions and because he refused to pay money to that organisation whilst he was in Bangladesh. The delegate, and subsequently the Tribunal, did not accept the appellant’s claims and found that he had fabricated his material claims for the purpose of obtaining a protection Visa. Accordingly each decision-maker found that the appellant did not satisfy the criterion under s 36 of the Act.

3    The appellant applied to the FCCA for a review of the decision of the Tribunal on the basis that, in broad terms, the appellant had lodged the incorrect version of Form 866 being the form of application required for his Visa. He contended that the legislative scheme applicable to the lodgement of such a form required that only the Form 866 as approved when the Migration Regulations 1994 (Cth) (Regulations) were implemented in 1999 could be used. As a result, by lodging a Form 866 that had been approved at a later date (Completed Form 866), he contended that there has been no valid application, that the decision of the delegate was a nullity and made without jurisdiction and that accordingly the decision of the Tribunal was also a nullity.

4    The primary judge rejected these arguments and on 23 February 2017 the appellant lodged a Notice of Appeal in this court in the following terms:

1.    The primary judge erred by holding that the Second Respondent had jurisdiction in relation to the Appellant’s application for review on the basis that the appellant’s application for a protection Visa dated 6 June 2013 was valid.

Particulars

a.    At the time of the Appellant’s application for the protection Visa, the version of Form 866 used by the appellant 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 Regulations 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.

c.    Rather, by virtue of those provisions and notwithstanding s 14(4) of the Legislation Act and s 504(2) of the Migration Act 1958 (Act) item 1401 was restricted to incorporating Form 866 to the extent that it existed when item 1401 took effect on 20 October 1999;

d.    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 Appellant’s application for the protection visa was not valid and the second respondent had no jurisdiction to review the delegate’s refusal of the protection Visa.

5    The Grounds of Appeal advanced before this Court are substantially in the same form as those before the FCCA. The appellant was represented by counsel before the primary judge. He was not legally represented at the hearing in this Court, but rather appeared in person and with the assistance of an interpreter. He filed no written submissions in support of his appeal and made no oral submissions. Counsel for the Minister, Ms François, helpfully summarised the effect of the submissions made on behalf of the appellant before the primary judge, made submissions in opposition to the appeal and relied on written submissions that had been filed in accordance with the Court’s directions.

6    Given the grounds raised before the primary judge and on appeal it is unnecessary to traverse the reasoning and findings of the Tribunal. Before turning to the reasoning of the primary judge it is convenient to summarise the relevant legislation upon which the appeal depends.

2.    THE RELEVANT LEGISLATION

7    Section 46 of the Migration Act 1958 (Cth) (Compilation start date 1 June 2013) relevantly provides as follows:

Valid visa application

(1)    Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:

(a) it is for a visa of a class specified in the application; and

(b) it satisfies the criteria and requirements prescribed under this section; and

…

(2)    Subject to subsection (2A), an application for a visa is valid if:

(a)    it is an application for a visa of a class prescribed for the purposes of this subsection; and

(b)    under the regulations, the application is taken to have been validly made.

…

(3)    The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.

….

8    Section 48A of the Act provides, in summary, that no further applications for a protection visa may be made when the grant of the visa has been refused, whether or not the application has been finally determined, while the non-citizen applicant is in the migration zone. Section 48B provides that the Minister may determine that s 48A does not apply in certain circumstances.

9    Regulation 2.07 prescribes criteria that must be satisfied for a visa application as follows:

Application for visa - general

(1)    For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1:

(a)    the approved form (if any) to be completed by an applicant;

(b)    the visa application charge (if any) payable in relation to an application;

(c) other matters relating to the application.

(3) An applicant must complete an approved form in accordance with any directions on it.

(4) An application for a visa that is made using an approved form is not a valid application if the applicant does not set out his or her residential address:

(a) in the form; or

(b) in a separate document that accompanies the application.

10    Schedule 1, Item 1401, as in force in November 1999 states: Form 866.

11    Section 14 of the Legislation Act 2003, provides as follows:

14 Prescribing matters by reference to other instruments

    (1) If enabling legislation authorises or requires provision to be made in relation to any matter in a legislative instrument, the legislative instrument may, unless the contrary intention appears, make provision in relation to that matter:

    (a)     by applying, adopting or incorporating, with or without modification, the provisions of any Act, or of any disallowable legislative instrument, as in force at a particular time or as in force from time to time; 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 legislative instrument takes effect.

    (2)    Unless the contrary intention appears, the legislative 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.

Note:    This section has a parallel, in relation to instruments that are not legislative instruments, in section 46AA of the Acts Interpretation Act 1901.

12    The appellant before the primary judge, and in the present appeal, relies upon either the operation of s 49A of the Acts Interpretation Act 1901 (Cth) or alternatively s 14(1) of the Legislation Act 2003 (Cth) as prohibiting the use of anything other than the 1999 version of the 866 Form.

13    Section 49A of the Acts Interpretation Act was repealed by Legislative Instruments (Transitional Provisions and Consequential Amendments) Act 2003 (Cth), which came into force in 2005. The Legislation Act 2003 came into force on 1 January 2005. As the completed Form 866 was lodged in June 2013, the correct legislation to consider is the Legislation Act 2003 (Cth). Nothing specifically turns on this, because the operative provisions relied upon are relevantly the same, but for these reasons, reference below is confined to s 14 of the Legislation Act 2003 (Cth).

3.    DECISION OF THE PRIMARY JUDGE

14    The arguments advanced before the primary judge were summarised as follows:

[9] The kernel of the argument developed skillfully by Mr Jones of counsel for the applicant, was that there had been an incorporation by reference into the Regulations which took effect on 20 October 1999 of the approved form at that time, and taking into account s.49A of the Act, it was only that approved form as at 20 October 1991 that could thereafter be used unless and until a further regulation was passed amending the relevant form.

[10] Counsel for the applicant accepted that the form that was completed by the applicant, was an approved form under s.495 of the Act. Counsel for the applicant submitted however, that the approved form used was not the form that met the requirements of Schedule 1 of the Regulations. It was submitted that this fixed and entrenched Form 866 as at 20 October 1999.

15    The primary judge rejected these arguments. The following passages summarise his conclusions:

33. The approved form is clearly a reference to the approved form from time to time, consistent with s.495 of the Act and reg.1.18 of the Regulations. Further, the construction advanced by Mr Jones gives rise to a potential inconsistency, given the reference in reg.2.07(3) of the Regulations to the requirement to complete an approved form in accordance with any directions on it. The reference to the Form 866 in item 1401 of schedule 1 to the Regulations was not a reference to the approved form, but rather a bare reference to Form 866. That Form 866 was not capable of becoming a mandatory fixed criteria unless and until the subject of the exercise of the power under s.495 of the Act, so as to be an approved form. The regulations and Item 1401 of Schedule 1 should be read in harmony and should not be construed as specifying the Form 866 as at 20 October 1999 as a criterion for validity.

…

37. In my opinion, the applicant by using the approved form authorised by the Minister on 27 January 2012 completed a valid application for a Protection visa.

38. The Tribunal accordingly had jurisdiction, as did the delegate, in respect of a valid application that had been made to the delegate for a Protection visa. It is not necessary in the present case to deal with the issue of substantial compliance. It is however, the case that the substance of the form completed by the applicant was in a practical sense, identical to the form said by the applicant to be the mandatory required form as frozen in 1999.

39. Whilst it is the case that s.46 and s.47 of the Act do identify criteria for a valid application as there was used in the present case, consistent with the requirements of reg.2.07 of the Regulations, “an approved form”, there is a real issue as to whether or not the reference to “the relevant item of Schedule 1 sets out the approved form (if any) to be completed by an applicant” under reg.207(1)(a) of the Regulations should be read as a provision requiring strict compliance as to exclude a form that is an approved form. Because of the reference to “approved form”, in reg.2.07 of the Regulations and the particular mandatory criteria identified by s.46, strict compliance with Item 1401 of Schedule 1 to the Regulations is not necessary even if Item 1401 incorporated Form 866 by reference.

4.    THE PRESENT APPEAL

16    As noted above, the appellant appeared in person and did not make any submissions in support of the grounds advanced. Having regard to the terms of the Notice of Appeal presently advanced, the appellant places, it seems, particular emphasis on s 14 of the Legislation Act 2003 which provides that where regulations or instruments are incorporated by reference in an Act or regulation, they are taken to be incorporated in the form that they existed when they were incorporated, unless the contrary intention appears.

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.

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.

5.    DISPOSITION

31    For the reasons set out above the appeal should be dismissed and the appellant pay the first respondent’s costs.

Associate:

Dated:    13 October 2017