Federal Court of Australia

BNG15 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 856

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from the transcript)

PERRY J:

1.    INTRODUCTION

1    The appellant (to whom I will refer respectfully as “Mr BNG”) appeals from a decision of a judge of the Federal Circuit Court of Australia (as it then was) (FCC): BNG15 v Minister for Immigration [2020] FCCA 276 (the FCC decision). The primary judge dismissed Mr BNG’s application for judicial review of a decision of a delegate of the respondent. By that decision, the delegate had determined that Mr BNG’s application for a Visitor (Tourist) (Subclass 600) visa (the tourist visa) was invalid because it did not satisfy section 48 of the Migration Act 1958 (Cth) (the Act).

2.    BACKGROUND

2    Mr BNG, a citizen of Nepal, arrived in Australia in 2009 with his then spouse (AB11). On 23 December 2011, a delegate of the respondent refused to grant Mr BNG a protection visa. That decision was affirmed by the Refugee Review Tribunal (as it then was) on 4 May 2012. Mr BNG’s application for judicial review of that decision in the FCC was dismissed. His appeal to this Court was unsuccessful, and he was refused special leave to appeal by the High Court in 2014 (respondent’s submissions (RS) [5]).

3    On 3 July 2014, Mr BNG applied for a Medical Treatment visa (Class UB), which was refused by the respondent’s delegate. The FCC dismissed his application for judicial review of that decision.

4    On 12 June 2015, Mr BNG attempted to lodge a further protection visa application. He was informed on 17 June 2015 that this application was invalid because section 48A of the Act applied. Section 48A relevantly provided that, unless the Minister determines that the section does not apply, if a non-citizen has, while in the migration zone, made an application for a protection visa and the grant of the visa was refused, she or he may not make a further application for a protection visa while in the migration zone. Mr BNG applied to the FCC for judicial review of that decision, which was unsuccessful.

5    On 25 October 2016, Mr BNG lodged an application for the tourist visa (the tourist visa application). On 27 October 2016, Mr BNG was informed by letter from the Department of Immigration and Border Protection that his application for the tourist visa was invalid (the delegate’s decision).

2.1    Federal Circuit Court of Australia proceeding

6    On 4 November 2016, Mr BNG applied to the FCC for judicial review of the delegate’s decision (the judicial review application). The judicial review application contained three grounds of review (Appeal Book (AB) 4), which the primary judge summarised in the FCC decision as follows:

5.     The application contains three grounds of review. The first ground asked the court to accept the application for review because the application for a Visitor visa had “exceptional grounds”, and as a result of the earthquake in Nepal continued to suffer and the Applicant has been personally affected by great loss and that he needed extra time to stay in Australia until the situation improved in Nepal.

6.     The second ground is that the Department found that the visa application was invalid “without taking into account the compelling and exceptional circumstances”.

7.     The third ground complains that while the Department found the visa application was invalid because it did not meet s.48 of the Act, it failed to give the Applicant a copy of s.48 to “see how it does or does not apply to [him]”.

(Emphasis in original.)

7    On 4 February 2022, the proceedings were listed for hearing and the FCC dismissed the judicial review application. Mr BNG did not file written submissions in accordance with the FCC’s orders. However he tendered a letter during the hearing that was treated as a submission. The letter referred to his personal circumstances, including his previous visa applications and the impact of the 2015 earthquake in Nepal (FCC decision at [3]-[4] and AB11).

8    The FCC held that the primary issue in the proceedings was the validity of the tourist visa application. The primary judge held that the question of whether a visa application is valid is an objective one to be determined by the court on judicial review (FCC decision at [9]). At the hearing before the FCC, Mr BNG acknowledged that he did not hold a substantive visa when he applied for the tourist visa and that, after last entering Australia, his application for a protection visa was unsuccessful (FCC decision at [15]). The FCC was satisfied that Mr BNG met the requirements of sections 48(1)(a) and (b)(i) of the Act but found that the tourist visa was not a prescribed visa class for the purposes of section 48 and regulation 2.12 of the Migration Regulations 1994 (Cth) (the Regulations). The FCC therefore held that Mr BNG’s tourist visa application was not a valid visa application and that Mr BNG had not established there was a jurisdictional error due to the respondent’s failure to consider a valid visa application pursuant to section 47 of the Act (FCC decision at [20]-[22]). A jurisdictional error is a material legal error which invalidates a decision by the Minister or a delegate.

9    The FCC found that it was not open to the respondent to take Mr BNG’s personal circumstances and the conditions in Nepal into account in considering the validity of the tourist visa application (FCC decision at [23]-[25]). As a result, the FCC held that grounds 1 and 2 of the application were not made out.

10    Ground 3 alleged that there was a jurisdictional error in failing to provide Mr BNG with a copy of section 48 of the Act. At the hearing on 4 February 2020, Mr BNG raised for the first time the claim that the Department had told him that he could apply for the tourist visa. The FCC rejected ground 3 on the basis that the question was whether the tourist visa application was valid and that was an objective question, citing Minister for Immigration and Border Protection v Kim [2014] FCAFC 47; (2014) 221 FCR 523 (Kim).

2.2    Federal Court of Australia proceeding

11    On 27 February 2020, Mr BNG appealed to this Court from the FCC decision. The notice of appeal dated 27 February 2020 lists the following grounds of appeal:

1.    Her Honour Judge Barnes gave me the judgment dated 4 February 2020 received in a letter by the Respondent’s Solicitor dated 14 February 2020.

2.    I was unable to establish that the decision of Her Honour is wrong by [sic] I maintain that I lodged my application as I was advised by the Department and my application was invalid because according to the judgment the Minister had no power to consider my claim.

3.    I hope that the Federal Court of Australia will reconsider the judgment of Her Honour Judge Barnes in a positive way.

12    The hearing of the appeal was delayed in order to facilitate an in-person hearing given the restrictions imposed as a result of the COVID-19 pandemic and the fact that Mr BNG is self-represented, requires an interpreter and requested an in-person hearing.

13    Mr BNG has not filed any written submissions in support of his appeal. However he made brief oral submissions which essentially repeated his submissions made in the FCC. The respondent’s submissions were filed on 11 July 2022.

3.    RELEVANT LEGISLATIVE PROVISIONS AND PRINCIPLES

14    An application for a visa is valid under section 46(1) of the Act relevantly “if, and only if, it is not prevented by any provision of this Act”, including section 48 (section 46(1)(d)). Section 47(3) in turn provides that “the Minister is not to consider an application that is not a valid application”.

15    Section 48 of the Act permits certain non-citizens in the migration zone to apply for a visa if the visa is within a class that is prescribed by the Regulations, but not for a visa of any other class. Section 48 of the Act relevantly provides:

48 Non‑citizen refused a visa or whose visa cancelled may only apply for particular visas

(1)     A non‑citizen in the migration zone who:

(a)     does not hold a substantive visa; and

(b)     after last entering Australia:

(i)     was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non‑citizen had applied (whether or not the application has been finally determined); or

…

may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.

16    The relevant regulation is regulation 2.12 of the Regulations, which sets out the prescribed classes of visas for the purposes of section 48 of the Act. The tourist visa, being a Visitor (Class FA) visa (FCC decision at [14], AB 16), is not one of the classes prescribed under regulation 2.12 of the Regulations.

4.    CONSIDERATION

17    Having carefully considered all of the material before me and the oral submissions, I have reached the view that the appeal must be dismissed.

18    First, this is an appeal from the decision of the FCC. The role of the Court on an appeal is to correct an error in the decision from which the appeal is brought, namely the FCC decision. The Court has no discretion to set aside the FCC decision on some other ground, such as Mr BNG’s personal circumstances as Mr BNG appears to ask this Court to do in requesting that it reconsider the FCC decision “in a positive way”. It follows that in order to succeed, Mr BNG must establish that the FCC made an error and wrongly dismissed Mr BNG’s application for judicial review because of that error: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [18] (Kiefel CJ), [60] (Gageler J), [117] (Nettle and Gordon JJ).

19    However, in his notice of appeal, Mr BNG states that he is unable to establish that the FCC decision was wrong and does not identify any error in that decision. Furthermore, in my view the FCC correctly held that the validity of a visa application is an objective question to be determined by the Court and that neither the Court nor the Minister has any discretion to grant a visa where the criteria for a valid visa are not met: Kim at [25]-[27] (the Court). The FCC also correctly held that Mr BNG had not lodged a valid visa application because his application was prevented by section 48 of the Act and was not, therefore, a valid visa application under section 46(1)(d) of the Act. This is because Mr BNG did not hold a substantive visa when he applied for the tourist visa on 25 October 2016 (as he accepted at the FCC hearing), he was refused a protection visa after last entering Australia, and the Visitor (Class FA) visa that he applied for is not a class of visa prescribed under the Regulations for the purposes of section 48 of the Act.

20    Secondly, as the Minister submits in his submissions at [19], in oral submissions during the hearing in the FCC, the appellant alleged that the Department had advised him that he could apply for a Visitor visa. However, the primary judge correctly held that even if Mr BNG had been incorrectly advised by the Department that he could apply for the Visitor visa, there was no jurisdictional error on the part of the delegate. This is because the Visitor visa was not a prescribed visa for the purposes of section 48 of the Act and the visa application was therefore invalid irrespective of what information was given to Mr BNG by the Department. There was, as I have earlier explained, no scope for the exercise of any discretion by the delegate.

5.    CONCLUSION

21    For these reasons the appeal must be dismissed. As Mr BNG has been unsuccessful on the appeal, he is to pay the Minister’s legal costs of defending the appeal as agreed or assessed by a Registrar of the Court.

Associate:

Dated:    21 July 2022