FEDERAL COURT OF AUSTRALIA

AIU17 v Minister for Immigration and Border Protection [2019] FCA 520

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time in which to file and serve a notice of appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

ALLSOP CJ:

1    This is an application for an extension of time in which to file a notice of appeal from a decision of the Federal Circuit Court dated 8 August 2018 dismissing an application for judicial review of a determination of a delegate of the Minister made on 30 December 2016 that the applicant’s protection visa application was invalid under s 48A of the Migration Act 1958 (Cth).

2    The applicant is a citizen of Sri Lanka and came to Australia in 2006.

3    On 19 April 2013, the appellant applied to the then Department of Immigration and Border Protection for a Protection (Class XA) visa. On 10 December 2013, a delegate for the Minister refused the application.

4    On 22 May 2014, the then Refugee Review Tribunal affirmed the decision of the delegate.

5    On 20 June 2014, the applicant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. On 20 August 2015, the Federal Circuit Court dismissed the application for want of appearance under r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

6    On 8 September 2015, the applicant applied to the Federal Circuit Court to set aside the order made on 20 August 2015. On 11 December 2015, the Federal Circuit Court heard and dismissed this application. The judge in that case expressed that the applicant’s failure to appear was “difficult to understand.”

7    On 22 December 2015, the applicant applied to this Court for leave to appeal from the interlocutory orders made on 11 December 2015. This application was heard and dismissed on 31 May 2016.

8    On 23 June 2016, the applicant filed an application for an order to show cause and an extension of time in the High Court of Australia. On 6 September 2016, the High Court heard and dismissed the application.

9    On 12 December 2016, the applicant purported to make a further application for a protection visa.

10    On 30 December 2016, an officer of the first respondent informed the applicant by letter that the application was invalid under s48A of the Act because the applicant had previously applied for a protection visa and the Minister had not made a determination under s 48B. At that time s 48A(1) of the Act provided that:

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.

11    It is not in dispute that the Minister had not made a determination under s 48B in respect of the applicant. Section 48(B) of the Act was in the following terms:

If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.

12    On 6 January 2017, the applicant applied to the Federal Circuit Court for judicial review of the officer’s determination on the grounds that since Form 866 used to apply for the first visa was a legislative instrument not tabled in Parliament, the application was invalid and the decision to refuse the application was ‘defunct’. Therefore, it was argued, s 48A did not apply to the second application. The applicant’s legal representatives conceded that these legal issues had been considered and decided by the Federal Circuit Court and this Court. The applicant, however, did not consent to a dismissal of the application and wished to reserve his right to appeal. The applicant also sought that no costs order be awarded against him as the issue before the Court, he submitted, was one of statutory construction decided by courts subsequent to the applicant filing his application.

13    On 8 August 2018, a judge of the Federal Circuit Court dismissed the application with costs on the basis that it was an abuse of process and without merit. The Court considered that since the applicant had pursued the first protection visa application through the judicial appeal process to the High Court of Australia, with considerable delay, and had not raised an argument as to the validity of the form at any stage, the application was an abuse of process. After considering the relevant statutory framework, the Court found, concurring with the reasoning in AGL17 v Minister for Immigration [2017] FCCA 3214, that the relevant form was not a “legislative instrument” within the meaning of s 8(1) of the Legislation Act 2003 (Cth) and need not have been tabled in Parliament and therefore the grounds of appeal were without merit.

14    At [16] the Court also noted that:

As of 18 July 2018, the Applicant was represented by Hugh Ford, solicitor. On 18 June 2018, the council of the Australian Capital Territory Law Society cancelled Hugh Ford’s 2017/18 practicing certificate pursuant to s.56 of the Legal Profession Act 2006 (ACT). He was then represented by other solicitors.

Proceedings in this Court

15    On 4 September 2018, the applicant applied for an extension of time in which to file a notice of appeal from the decision of the Federal Circuit Court, six days out of time. The applicant filed an accompanying affidavit on that same date, deposing that he did not receive legal advice with respect to the filing of the appeal and that he was in severe financial hardship.

16    The first respondent filed its submissions in accordance with the orders of Registrar McCormick on 14 February 2019. The applicant did not file submissions in accordance with those orders.

17    On 20 February 2019 the hearing listed for 21 February 2019 was adjourned to 5 March 2019, on the basis that the applicant would be unable to appear at the hearing for health reasons. This was supported by a medical certificate provided by the applicant. On that date the Court also ordered that the applicant file and serve written submissions on the appeal should an extension of time be granted, including argument responding to the Minister’s submissions, by 19 March 2019. The Court noted that if the submissions filed did not raise a prima facie argument as to why any appeal would be allowed, the matter would be dealt with on the papers and judgment delivered on the day next fixed.

18    On 15 March 2019, the applicant filed submissions on his own behalf. The submissions of the applicant relate to his experience working in the hospitality industry in Australia, they do not address any grounds upon which, if any application were granted, the appeal should be allowed. The applicant states that “I have been advised by my Solicitor, Hugh Ford that application itself has some error and he made a submissions on behalf of me. I have attached his submission for your kind attention. At present I do not have any solicitor as I cannot afford.”

19    The attached ‘further submissions’ appear by their form to be a copy of submissions made in the Federal Circuit Court proceedings from which the applicant seeks to appeal. The submissions are signed by Hugh Ford, dated 3 August 2017 and quote the file number of the Federal Circuit Court proceedings. Despite their appearance, these submissions do not appear to have been filed in those proceedings. They do, however, seek to raise essentially the same arguments as those raised before the Federal Circuit Court.

20    It is submitted by Mr Ford on behalf of the applicant that the form used to apply for the ‘first’ protection visa was not in the approved form in accordance with sch 1 of the Migration Regulations 1994 (Cth), as is required under s 46 of the Act. It is submitted that the form used was not tabled in Parliament and was a disallowable and legislative instrument for the purposes of s 8(4) of the Legislation Act. Therefore, it is submitted, the ‘first’ protection visa application was invalid and s 48A does not apply to invalidate the ‘second’ protection visa application.

21    Mr Ford submitted that this question had been “partially addressed” in BVJ16 v Minister for Immigration & Anor [2017] FCCA 178, however, submitted that the Circuit Court did not explain its reasoning behind statements made at [20] of the reasons, specifically, the Circuit Court did not explain the reasoning for the conclusion that the approved forms were “not disallowable instruments”. Paragraph 20 was in the following terms:

20.     Regulation 1.18 of the Regulations facilitates the approval of forms consistent with s.495 of the Act for the efficient and expeditious implementation of the legislative scheme behind the visas that may be granted under the Act. Materially, the power to approve forms for use in making an application facilitates the Minister or the Minister's delegate being able to approve forms that from time to time need change because of changes in technology or other reasons. That process for approval of forms under reg.1.18 of the Regulations does not require the same steps as would be required for delegated legislation. The forms approved under s.495 of the Act and reg.1.18 of the Regulations are not delegated legislation or more accurately, not a disallowable instrument.

22    Mr Ford acknowledged that the matter was at that time on appeal to the Federal Court. An appeal from that decision was heard and dismissed by Burley J in October 2017: BVJ16 v Minister for Immigration and Border Protection & Anor [2017] FCA 1205. The argument made before the Court in that matter was relevantly the same argument made here, with the slight variation that it was claimed that the ‘first’ protection visa was made using a form that was invalid because the only form that could be used to make a valid application was the version that existed when the relevant regulations took effect on 20 October 1990 as it was incorporated into the legislation by reference to the regulations.

23    In SZMOX v Minister for Immigration and Border Protection [2018] FCAFC 121, the Full Court of the Federal Court referenced Burley J’s judgment in BVJ16 [2017] FCA 1205 and cited a number of cases in this Court that have followed that decision. The Full Court also stated that “there is little we can usefully add to the analysis of Burley J in BVJ16.” See also DGC18 v Minister for Home Affairs [2019] FCA 250 at [11].

24    As to the extension of time, the Minister accepts that the applicant has an adequate explanation for the delay however submits that it would not be in the interests of justice to grant the extension of time because the appeal would have no prospects of success.

25    Whilst the Minister filed its submissions prior to the applicant’s submissions, the Minister correctly anticipated some of the applicant’s grounds of appeal and responded to those grounds of appeal in its submissions.

26    First, the Minister notes that the applicant seeks to re-agitate the same grounds of review advanced before the Federal Circuit Court which the applicant’s legal representatives recognised challenged authority of this Court and upon that basis conceded that the application should be dismissed.

27    The Minister submits that the approved form is not itself a “legislative instrument” under s 8 of the Legislation Act, as has been held in BVJ16 v Minister for Immigration [2017] FCCA 178 at [20] and AGL17 v Minister for Immigration [2017] FCCA 3214 at [20]. It is also submitted that the approved form is not incorporated by reference into a “legislative instrument” under s 14 of the Legislation Act, as has been held by this Court in BVJ16 [2017] FCA 1205 at [26]–[29] and the Full Court in SZMOX [2018] FCAFC 121 at [25]–[32].

28    The Minister submits that it is clear that none of the approved forms are “legislative instrument(s)” under s 8 of the Legislation Act because the Migration Act does not provide for the approved form to be made by legislative instrument (s 8(2)); the form is not recorded on the Federal Register of Legislation (s 8(3)); the form is not an instrument that determines or alters the law (s 8(4)); and the form is not declared as a legislative instrument (s 8(5)).

29    Since the approved form was not a “legislative instrument” under s 8 of the Legislation Act, nor incorporated by reference into a “legislative instrument”, there was no requirement for it to be tabled in Parliament.

30    The Minister further submits that the proposed grounds of appeal do not challenge the independent basis upon which the Federal Circuit Court dismissed the application, namely that it was an abuse of process. In the absence of a challenge to that finding, it is submitted that the appeal is bound to fail.

Consideration

31    The applicant’s argument depends upon the proposition that the approved form on which the applicant was required to make his visa application was a “legislative instrument” under the Legislation Act and so required to be tabled in Parliament: s 38 of the Legislation Act.

32    The approved form is not a legislative instrument as it does not fall within the meaning of any ss 8(2), (3), (4) or (5). The form is one simply that is to be in an approved form under s 495 of the Migration Act and reg 1.18 of the Migration Regulations. The Migration Act does not provide for the approved form to be made by legislative instrument: s 8(2); the form is not recorded on the Federal Register of Legislation: s 8(3); the form is not an instrument that determines or alters the law: s 8(4); and the form is not declared as a legislative instrument: s 8(5).

33    None of the approved forms is incorporated by reference into an instrument being sch 1 of the Migration Regulations: BVJ16 [2017] FCA 1205 at [26]–[29]; SZMOX [2018] FCAFC 121 at [25]–[32]; DGC18 v Minister for Home Affairs [2019] FCA 250.

34    There is no foundation to the argument that s 48A does not apply.

35    The application for an extension of time in which to file and serve a notice of appeal should be dismissed with costs.

Associate:

Dated:    15 April 2019