BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205

BVJ16 v Minister for Immigration and Border Protection [2017] FCA 1205

The appellant's later approved Form 866 was a valid approved form for a Protection (Class XA) visa application. Regulation 2.07(1) read with Schedule 1 Item 1401 did not incorporate a fixed 1999 version of Form 866 into the Regulations; it identified the form number or type to be used, being such Form 866 as the Minister may approve from time to time. In any event, the legislative context showed a contrary intention. The delegate and Tribunal therefore had jurisdiction, and the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
13 October 2017
Procedural Posture
Migration Appeal Concerning Validity of a Protection (class Xa) Visa Application / Appeal From the Federal Circuit Court of Australia Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Decision
Outcome
Appeal dismissed.
Legal Topics
['protection (class Xa) Visa' 'valid Visa Application' 'form 866' 'approved Form' 'incorporation by Reference' 'tribunal Jurisdiction']
['migration Law' 'administrative Law'] ['protection (class Xa) Visa' 'valid Visa Application' 'form 866' 'approved Form' 'incorporation by Reference' 'tribunal Jurisdiction']

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Procedural Posture

Migration Appeal Concerning Validity of a Protection (class Xa) Visa Application / Appeal From the Federal Circuit Court of Australia Dismissing an Application for Judicial Review of an Administrative Appeals Tribunal Decision

Legal Issues

  1. 1 ["Whether the appellant's Protection (Class XA) visa application was invalid because he used a version of Form 866 approved after Item 1401 of Schedule 1 to the Migration Regulations 1994 (Cth) took effect." 'Whether s 14 of the Legislation Act 2003 (Cth) prevented Item 1401 of Schedule 1 to the Migration Regulations 1994 (Cth) from applying to later approved versions of Form 866.' "Whether the delegate and the Administrative Appeals Tribunal had jurisdiction in relation to the appellant's visa application."]

Ratio Decidendi

The appellant's later approved Form 866 was a valid approved form for a Protection (Class XA) visa application. Regulation 2.07(1) read with Schedule 1 Item 1401 did not incorporate a fixed 1999 version of Form 866 into the Regulations; it identified the form number or type to be used, being such Form 866 as the Minister may approve from time to time. In any event, the legislative context showed a contrary intention. The delegate and Tribunal therefore had jurisdiction, and the appeal was dismissed.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal be dismissed.' "The appellant pay the first respondent's costs."]