FEDERAL COURT OF AUSTRALIA

CDI15 v Minister for Immigration and Border Protection [2018] FCA 58

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the 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    The appellant is a citizen of Bangladesh who arrived in Australia on 28 March 2013. On 1 July 2013 he submitted an application for a protection (Class XA) visa (first visa application). His application was refused by a delegate of the Minister for Immigration and Border Protection (Minister) on 28 August 2014. The appellant then applied to the Administrative Appeals Tribunal (Tribunal) for a review of the delegate’s decision. On 8 October 2015 the Tribunal affirmed the decision of the delegate.

2    The appellant did not then appeal from the decision of the Tribunal, but instead on 19 October 2016 he lodged a further application for a protection (class XD) visa (second visa application). On 25 October 2016 the Department of Immigration and Border Protection wrote to the appellant and informed him that his second application was not valid because he had previously been refused a protection (Class XA) visa and s 48A of the Migration Act 1958 (Cth) (Act) prevents a person who has not left Australia since they were refused a protection visa from making a subsequent protection visa application. In summary, s 48A of the Act provides that, subject to s 48B, a non-citizen who has had his or her application for a protection visa refused, 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. Section 48B provides that the Minister has discretion to determine that s 48A does not apply.

3    The appellant then filed an application in the Federal Circuit Court of Australia (FCCA) seeking declaratory and other relief to set aside the decision contained in the letter of 25 October 2016. On 7 July 2017 a judge of the FCCA heard the application and determined that the second application was not valid pursuant to s 48A of the Act and dismissed the application. It was not in dispute that the FCCA had jurisdiction to consider the application.

4    On 25 July 2017 the appellant filed a Notice of Appeal in this Court stating, as the only ground advanced, “error of law”.

5    The appellant did not have the benefit of legal assistance at the hearing, but represented himself, with the assistance of a Bengali interpreter. He filed no written submissions. Mr Andras Markus, a solicitor from the Australian Government Solicitor, appeared on behalf of the Minister and filed submissions in advance of the hearing.

2.    THE DECISION OF THE FCCA

6    The appellant was represented by counsel before the primary judge and relied upon the following grounds to establish jurisdictional error on the part of the Minister:

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 (BCC 2016/3506368), the version of Form 866 used by the Applicant bad been approved by the Minister under reg1.18(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(l)(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. The earlier application was filed prior to 5th March 2016, whilst the latter application (the protection visa declared invalid subject to these proceedings) was filed subsequent to this date.

7    The decision of the primary judge records that counsel for the applicant accepted that the issue articulated in the grounds of appeal is the same as that which was determined by the same judge in BVJ16 v Minister for Immigration and Border Protection [2016] FCCA 178 (BVJ16). His Honour records that in BVJ16 he rejected the argument advanced and accordingly rejected the argument brought in the present case, and dismissed the appeal with costs.

3.    THE PRESENT APPEAL

8    In the present appeal the appellant is not legally represented. It is therefore appropriate to allow some latitude when addressing the ground of appeal that is advanced. For present purposes it may be assumed that the ‘error of law’ for which the appellant contends in his Notice of Appeal is that the primary judge erred in rejecting his argument that s 48A of the Act is not applicable to the first application. This was the approach which in my view was correctly adopted by the Minister’s legal representative.

9    In short, the argument put below is that the first visa application was a nullity because the wrong protection visa form was used. Accordingly, the second visa application ought not to have been rejected pursuant to s 48A of the Act.

10    I addressed an equivalent argument in some detail in the appeal from BVJ16 in BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205 (BVJ16 on appeal). In that case, after summarising the arguments and legislation advanced, I observed:

[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) [of the 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.

11    The basis upon which the appellant’s current appeal is brought is legally indistinguishable. In each case, the appellant contends that a prior application is to be considered a legal nullity as a result of an asserted incorporation by reference of a particular version of Form 866 into the Act and the Migration Regulations 1994 (Cth). For the reasons set out above, that argument is to be rejected.

12    The primary judge reached the conclusion that, for the reasons set out in his decision in BVJ16 the relief sought before him should be refused. In BVJ16 on appeal, I upheld the decision made by the primary judge.

13    In the present appeal, the same result follows.

4.    DISPOSITION

14    The appeal should be dismissed. The appellant is to pay the respondent’s costs.

Associate:

Dated:    12 February 2018