FEDERAL COURT OF AUSTRALIA

DGC18 v Minister for Home Affairs [2019] FCA 250

ORDERS

IN NSD 1985 of 2018 CVH16 V MINISTER FOR HOME AFFAIRS, THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

IN NSD 2006 of 2018 DVM16 & ANOR V MINISTER FOR HOME AFFAIRS, THE COURT ORDERS THAT:

2.    The appeal be dismissed with costs.

IN NSD2010 of 2018 BOW17 V MINISTER FOR HOME AFFAIRS, THE COURT ORDERS THAT:

3.    The appeal be dismissed with costs.

IN NSD2038 of 2018 SZRGA & ORS V MINISTER FOR HOME AFFAIRS, THE COURT ORDERS THAT:

4.    The appeal be dismissed with costs.

IN NSD2070 of 2018 MZAKA V MINISTER FOR HOME AFFAIRS, THE COURT ORDERS THAT:

5.    The appeal be dismissed with costs.

THE COURT NOTES THAT:

6.    The appellants and applicants in CVH16 v Minister of Home Affairs; DVM16 & Anor v Minister of Home Affairs; BOW17 v Minister of Home Affairs; SZRGA v Minister of Home Affairs; SZSKJ v Minister of Home Affairs; MZAKA v Minister of Home Affairs; and CVI18 v Minister of Home Affairs formally submit that SZMOX v Minister for Immigration and Border Protection [2018] FCAFC 121 is wrong.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

ALLSOP CJ:

1    There have been filed in this court nine proceedings relating to the validity of a version of Form 866 prescribed by the Migration Regulations 1994 (Cth) (the Regulations) as the form to be used by applicants to apply for a protection visa under s 36 of the Migration Act 1958 (Cth) (the Act). These nine separate appeals and applications were heard concurrently today because they all raise a single ground of appeal that is identical in each case. Each matter involves an appeal from a decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a determination made by a delegate of the respondent that the applicant's application for a protection visa was invalid pursuant to section 48A of the Act which precludes persons from making subsequent protection visa applications where previous applications have been unsuccessfully made.

2    The ground of appeal in each matter is, in essence, that their ‘first’ application for a protection visa was invalid due to it being made using a version of Form 866 which, whilst validly approved, was not incorporated into the Regulations and therefore could not be used for the purposes of lodging an application for a protection visa. The result is that s 48A does not apply, so the argument goes, to the subsequent applications lodged by the applicants, and thus it is said that the respondent is required to consider the applications now made according to law.

3    It is unnecessary to traverse the full details of the procedural history in each matter as it is irrelevant to the resolution of the proceedings. The history of the proceedings in each case is very similar and for these purposes can be briefly stated.

Procedural History

4    In every matter, the appellant or applicant filed an application for a Protection (Class XA) Visa at some point between 2003 and 2014 pursuant to s 36(2) of the Act. A delegate for the respondent refused to grant the visa for reasons specific to each case, finding that the appellant or applicant was not a person in respect of whom Australia has protection obligations or, in the relevant case, not members of the same family unit of someone who holds such a protection visa.

5    In every matter, the applicant or appellant applied to the Administrative Appeals Tribunal or the Refugee Review Tribunal for review of that decision. In every matter except one, the decision of the delegate was affirmed. In the matter of SZRGA, the decision of the delegate was initially set aside on review, but then remitted to a differently constituted tribunal where the decision of the delegate was affirmed again.

6    In some matters, the applicants applied unsuccessfully to the Federal Circuit Court and the Federal Court for review of the decision of the relevant tribunal. In DGC18, the applicant applied unsuccessfully to both the Federal Circuit Court and the Federal Court twice in relation to the same decision.

7    At a later stage, the appellant or applicant in every matter purported to make a ‘second’ application for a protection visa. In each matter except one, the appellant or applicant was notified by a delegate of the respondent that this second application was not valid by reason of s 48A of the Act, which relevantly provided as follows:

48A 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.

8    In the matter of SZSKJ, this second application for protection made on 3 December 2012, was accepted as valid following the Full Federal Court decision of SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235, however was refused by the delegate and, once again, the refusal was affirmed on review to the Administrative Appeals Tribunal. The applicant then purported to make a ‘third’ application which was determined as invalid. This determination is the subject of the appeal.

9    Similarly in DGC18, this second application was also made relying on SZGIZ. This application was refused and affirmed on appeal to Administrative Appeals Tribunal. The applicant then sought unsuccessfully to appeal this decision in the Federal Circuit Court and the Federal Court. The applicant then purported to make a ‘third’ application which was determined as invalid. This determination is the subject of this appeal.

10    In each case, the appellant or applicant then applied to the Federal Circuit Court by way of judicial review challenging the determination of the delegate of the respondent with respect to the invalidity of the application.

11    The issues raised in each of these matters are relevantly identical to those previously considered in a large number of cases in this court. The Full Court in SZMOX v Minister for Immigration and Border Protection [2018] FCAFC 121 (SZMOX) rejected an argument relevantly identical to the appellants’ and applicants’ proposed arguments in these cases, stating that there was “little we can usefully add to the analysis of Burley J in BVJ16 [v Minister for Immigration and Border Protection and Anor [2017] FCA 1205]”, which dismissed the matter for essentially the same reasons as attracted the Full Court. The reasoning in BVJ16 has been followed by Burley J himself in the matters of 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; and BLR15 v Minister for Immigration and Border Protection [2018] FCA 67; and by Banks-Smith J in AUM17 v Minister for Immigration and Border Protection [2018] FCA 306, Reeves J in SZLZS v Minister for Immigration and Border Protection [2018] FCA 748 and referred to in obiter dicta by Bromwich J as “a decision that seems unassailably correct”: CHY16 v Minister for Immigration and Border Protection [2017] FCA 1390. In dismissing an application for special leave to appeal from the judgment of Reeves J, referred to above, the High Court stated in SZLZS v Minister for Immigration and Border Protection [2018] HCASL 270 that “(a)n appeal to this Court would enjoy no prospect of success”.

12    In all Federal Circuit Court proceedings except DGC18, the respondent filed an application in a case and sought orders pursuant to r 13.10(a) of the Federal Circuit Court Rules 2001 (Cth) that the application be dismissed on the basis of no reasonable prospects of success. In the following matters the applicant appeared to consent to these orders dismissing the application with costs, but formally submitted that the judgment of the Full Court in SZMOX was ‘plainly wrong’; that is, CVH16; DVM16; BOW17; SZRGA; SZSKJ; MZAKA; and CVI18.

13    Mr Markus, on behalf of the first respondent, correctly, if I may respectfully say, put the position that though styled consent, they were only consent as to form and were not consent orders attracting the necessity for leave to appeal by operation of s 24 of the Federal Court of Australia Act 1976 (Cth).

14    Submissions have not been made by any appellant or applicant as to why these authorities should not be followed. A formal submission has been made that they are wrong. In all proceedings except DGC18 and BRJ18, in which the applicants are unrepresented, the parties were represented by the same firm.

15    There are four matters in which an extension of time is sought. DGC18, BRJ18 (those being the two unrepresented matters), SZSKJ and CVI18. In all of those matters the defaulting time was short. In DGC18 it was five days, in BRJ18 it was seven days, in SZSKJ it was four days, and in CVI18 it was four days. Leave to appeal is also sought in DGC18 and BRJ18.

16    As I have indicated earlier, there are no submissions put as to the error in the apparently governing authorities. It is unnecessary to deal in detail with the Minister's submissions. It is sufficient to say the following. The criteria for a valid protection visa are found in s 46, specifically subsection 3 of the Act, which provides that regulations may prescribe certain criteria that must be satisfied for a valid application. Regulation 2.07 prescribes that an approved form must be completed. Item 1401 of Sch 1 to the Regulations, that took effect on 20 October 1999, prescribes Form 866 as the form to be used to make a valid protection visa application. Item 1401 of Sch 1 identifies that relevant form.

17    The argument for the appellants and the applicants is that, by the scheme, the legislation incorporated Form 866 by reference to reg 2.07. Further, by operation of s 49A(1) of the Acts Interpretation Act 1901 (Cth) and after 1 January 2005, by operation of sub-ss 14(1) and (2) of the Legislation Act 2003 (Cth), the legislation only incorporated the version of Form 866 as it existed at the time when Item 1401 of Sch 1 took effect and was therefore the only Form that may be used to make a valid protection visa application, until further regulation was passed amending that form. There is no question that the forms used in the appellants’ and applicants’ previous visa application were approved after Item 1401 of Sch 1 took effect. Whilst no submissions have been made to this point, presumably the appellants and applicants rely on the more recently introduced s 14(4) of the Legislation Act 2003 (Cth), in order to justify the argument that their most recent applications are not also invalid.

18    The argument is met by the authorities to which I have adverted and it is unnecessary to repeat those reasons other than by adoption of the governing authorities to which I have referred. In those circumstances, the proper order to make in relation to the matters where a notice of appeal has been filed is to dismiss the appeal with costs.

19    Those five matters with their notices of appeal dismissed will be amenable to an application for special leave to appeal. I have already referred to an application that was made to the High Court from the judgment of Reeves J that the appeal would enjoy no prospect of success. That is from the judgment from SZLZS v Minister for Immigration and Border Protection [2018] HCASL 270.

20    The importance of this consideration is that if I dismiss the application for an extension of time that is not an order in respect of which special leave would be able to be sought, the question then arises as to whether, in the circumstances of protection visa applications, that it would be a proper exercise of power to permit the extension of time and any leave to appeal but dismiss the substantive appeal in order to allow the four applicants to be in the same position as the applicants who attended to the time provisions of the Act and Rules with more care.

21    The first respondent has submitted that the proper exercise of power is to deal with the matter on the basis of the current state of authority.

22    I propose to consider further the exercise of that power in the next 48 hours, in particular by reference to the nature of the claims for protection. Therefore, I do not propose to make orders today in four of the nine matters. Those applicants should, however, understand that the result of their matters will be a dismissal of a substantive argument, and the only matter that I am considering is whether I should refuse the application for an extension of time or make such orders as to put them in the same position as the other unsuccessful appellants. For those reasons, I stand over to Friday at 10.15am for the making of orders and the publishing of any further reasons the matters of DGC18, BRJ18, SZSKJ and CVI18.

23    In the matters of CVH16, DVM16, BOW17, SZRGA and MZAKA, the order of the Court in each matter is that:

(1)    The appeal be dismissed with costs.

Associate:

Dated:    1 March 2019