FEDERAL COURT OF AUSTRALIA

SZMOV v Minister for Immigration and Border Protection [2018] FCA 66

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants 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 first appellant is a citizen of the Republic of Korea (South Korea) who was born in 1959. The second appellant is his wife, also a citizen of the Republic of Korea, who was born in 1961. They arrived in Australia as holders of business visas, on 14 November 2004 with their 2 sons. On 5 September 2006 the appellants lodged an application for a protection visa on which they listed their children as members of their family unit (first visa application). On 18 December 2006 a delegate of the Minister for Immigration and Border Protection (Minister) refused that application and on 24 November 2006 the appellants applied to the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (Tribunal) for a review of the delegate’s decision. On 8 February 2007 the Tribunal affirmed the delegate’s decision. In arriving at its decision, the Tribunal considered the appellants’ claims for protection under s 36(2) of the Migration Act 1958 (Cth) (Act).

2    Undeterred by the refusal, on 8 April 2014 the appellants lodged a further protection visa application (second visa application). On 17 November 2014 a delegate of the Minister refused that application. On 18 December 2014 the appellants applied for a review of the delegate’s decision and on 30 May 2016 the Tribunal gave a decision affirming the delegate’s decision.

3    On 22 August 2016 the appellants lodged yet a further application for a protection visa (third visa application). On 24 August 2016 an officer of the Department of Immigration and Border Protection (Department) wrote to the appellants and indicated that according to the provisions of s 48A of the Act, the third visa application was not valid pursuant to s 48A of the Act. 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.

4    The decision of the officer of the Department represents a refusal to make a decision on the third visa application within s 474(3) of the Act. On 26 September 2016 the appellants made an application to the Federal Circuit Court of Australia (FCCA) seeking orders to reverse the decision set out in the 24 August 2016 letter. It was not in dispute that the FCCA had jurisdiction to consider the application.

5    On 13 July 2017 a judge of the FCCA made orders dismissing the application, whereupon the appellants filed a Notice of Appeal in this Court contending that the primary judge had made an error of law.

6    The appellants were represented by solicitors and counsel before the FCCA, but did not have the benefit of legal assistance in the present appeal. At the hearing they represented themselves with the assistance of a Korean interpreter and made no substantive submissions. They filed no written submissions. The Minister was represented by Mr Andras Markus from the Australian Government Solicitor, who filed written submissions in advance of the hearing.

2.    THE DECISION OF THE FCCA

7    The grounds upon which the appellants relied before the FCCA were as follows:

2. The Delegate of the Respondent made a jurisdictional error by failing to exercise jurisdiction.

a. At the time of the earlier protection visa applications (CLF 2006/99596, CLF 2014/45147 & CLF 2014/54425), 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 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 l999;

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 Section13(1) of the Legislation Act, the earlier application was not invalid and the later application was not barred by Section 48A of the Act.

8    The learned primary judge records that counsel representing the appellants accepted that the substantive grounds relied upon before him were the same as ground 2 that was considered and rejected by the primary judge in SZUGL v Minister for Immigration and Border Protection [2017] FCCA 419 (SZUGL) and the same as ground 4 that was considered and rejected by Street J in BVJ16 v Minister for Immigration and Border Protection [2017] FCCA 178 (BVJ16). Nevertheless counsel sought to rely on the same argument in order to preserve his client’s rights on appeal. His Honour then went on to provide a careful and detailed analysis of the reasons why in the present case the argument advanced by the appellants before him should be rejected, adopting aspects of the reasoning that he had set out in SZUGL.

3.    CONSIDERATION

9    In the present appeal the Minister contends that the broadly expressed ground of appeal (“error of law”) now advanced by the appellants should be taken to be, in effect, the same argument as that which was advanced before the primary judge. I agree. It is appropriate in a case where the appellants are self-represented that some allowances be made where there may be infelicities in form. It is plain that the appellants on appeal wish to contend that the primary judge erred in his application of the law to the arguments advanced on their behalf before the primary judge.

10    The argument put below, as succinctly summarised by the Minister’s legal representative, is that s 48A does not apply to the third visa application because the version of Form 866 used by him in their previous two protection visa applications, although validly approved, could not be used for the purposes of lodging a valid application for a protection visa by virtue of either s 49A of the Acts Interpretation Act 1901 (Cth) or s 14 of the Legislation Act 2003 (Cth) and certain provisions of the Act and the Migration Regulations 1994 (Cth) (Regulations). Those provisions had the effect of incorporating into the Regulations the whole of the Form 866 as approved at 20 October 1999, when item 1401 of Schedule 1 to the Regulations first came into effect. According to the appellants, it follows that the previous applications for a protection visa were not validly made, were a nullity, and therefore s 48A of the Act had no relevant application to his more recent protection visa application.

11    I addressed the legal argument now advanced by the appellants in some detail in the appeal from BVJ16 in BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205. In that case, 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.

12    The basis upon which the appellant’s current appeal is brought is legally indistinguishable. In each case, the appellants have contended 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 Regulations. For the reasons set out above, that argument is to be rejected.

13    For substantially similar reasons the primary judge correctly, in my respectful view, declined the relief sought by the appellants before him.

4.    DISPOSITION

14    Accordingly, I dismiss the appeal and order that the appellants pay the respondent’s costs.

Associate:

Dated:    13 February 2018