FEDERAL COURT OF AUSTRALIA

CNP16 v Minister for Immigration and Border Protection [2018] FCA 65

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant 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    The applicant is a citizen of Lebanon. He arrived in Australia on 13 February 2008 on a student visa. On 3 September 2014 the applicant lodged an application for a protection (Class XA) visa (visa application). On 7 January 2015 a delegate of the Minister for Immigration and Border Protection (Minister) refused the application and on 22 January 2015 the applicant applied for a review of that decision by the Administrative Appeals Tribunal (Tribunal). On 24 August 2016 the Tribunal affirmed the delegate’s decision. On 8 September 2016 the applicant applied to the Federal Circuit Court of Australia (FCCA) for judicial review of the Tribunal’s decision.

2    In the FCCA proceedings the applicant contended that the Tribunal had made a jurisdictional error by purporting to make a decision on the review application in circumstances where there was no jurisdiction to do so. He contended that his visa application was invalid because it was filed using the wrong form and, by operation of the terms of the Migration Act 1958 (Cth) (Act), and the Migration Regulations 1994 (Cth) (Regulations) this rendered it a nullity.

3    The primary judge rejected the applicant’s arguments and on 10 April 2017 made orders dismissing the application and requiring the applicant to pay the Minister’s costs. It was not in dispute that the FCCA had jurisdiction to consider the application.

4    On 31 July 2017 the applicant filed an application for an extension of time within which to file a Notice of Appeal from the decision of the FCCA. The applicant swore an affidavit in support of his application that states that the delay in filing the appeal is over 3 months and providing an explanation for the delay. In summary, the explanation given is that at the time of the decision the applicant’s wife fell extremely ill after exacerbating a pre-existing back injury and having recently undergone gastric surgery. The applicant also suffers from severe depression and an anxiety disorder. He was left to care for his wife’s 2 young children and, in the circumstances, was prevented from filing his appeal on time.

5    The draft Notice of Appeal set out one ground upon which the applicant relies and is set out below:

1.    The primary judge erred by holding that the Second Respondent [that is, the 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 3 September 2014 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(l)(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 (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;

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.

6     This is in effect the same ground relied upon before the primary judge.

7    The Minister is represented by Mr Andras Markus, a solicitor from the office of the Australian Government Solicitor. He contends that the extension of time should be refused because there has been no adequate explanation for the delay in filing the Notice of Appeal and because the proposed appeal has no real prospects of success.

8    Counsel for the applicant, Mr Oliver Jones, filed a written submission on 13 November 2017. In it, he provides a chronology of the relevant events and contends that the critical question applicable to the grant of the extension of time in the present case is the strength of the proposed appeal. His submission states that the present case is “on all fours” with the decision of this Court in BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205 (BVJ16). In that decision I rejected an equivalent argument proposed to be advanced on appeal in the present case, namely that the first visa application is to be regarded as a nullity on the basis that it was not made using the same version Form 866 that was in force at the time when the Regulations were enacted.

9    In that decision, after summarising the arguments and the legislation, I said:

[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.

10    In his written submission, counsel for the applicant states that he accepts that, whilst he should formally submit that BVJ16 is plainly wrong, for practical purposes it is unlikely that I would reach a conclusion contrary to that which I have expressed above. Accordingly, he accepts that an extension of time should be refused, subject only to the Court recording the formal submission that BVJ16 is plainly wrong.

11    In CTY15 v Minister for Immigration and Border Protection [2017] FCA 1354, Perry J helpfully summarised the principles relevant to the exercise of discretion to grant an extension of time for an appeal as follows:

(1)    An extension of time will not be granted unless the Court is positively satisfied that it is proper to do so.

(2)    The length of the delay is a relevant factor.

(3)    The appellant must show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time.

(4)    Any prejudice to the respondent is a material factor militating against the grant of an extension, although the absence of prejudice does not, without more, suffice to justify the grant of an extension of time.

(5)    The merits of the substantive appeal, if leave were granted, are properly to be taken into account.

(See e.g. BAO15 v Minister for Immigration and Border Protection [2016] FCA 214 at [19]; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349)

12    Counsel for the applicant was correct to make the concession that the Court, in considering the prospects of success of any appeal, would consider the decision in BVJ16 to be an insurmountable hurdle for the applicant. In my view the prospect that the applicant would succeed on appeal are sufficiently remote so as to reach the conclusion that the application for an extension of time to appeal should be refused, notwithstanding the explanation for the delay provided by the applicant.

13    Accordingly, the application for an extension of time should be dismissed with the applicant to pay the first respondent’s costs.

Associate:

Dated:    13 February 2018