CTU17 v Minister For Immigration and CTV17 v Minister For Immigration and CTW17 v Minister For Immigration
[2019] FCCA 449
•28 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CTU17 v MINISTER FOR IMMIGRATION and CTV17 v MINISTER FOR IMMIGRATION and CTW17 v MINISTER FOR IMMIGRATION | [2019] FCCA 449 |
| Catchwords: MIGRATION – Validity of second protection visa application – construction of s.48A of the Migration Act 1958 (Cth) – whether earlier protection visa application made on behalf of non-adult applicants. |
| Legislation: Migration Act 1958 (Cth), ss.35A, 36, 45, 46, 47, 48, 48A, 65 Migration Amendment Act 2014 (Cth) |
| Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 AZABF v Minister for Immigration and Border Protection [2015] FCAFC 174; (2015) 235 FCR 150 Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293 Jaffari v Minister for Immigration and Multicultural Affairs [2001] FCA 1516; (2001) 113 FCR 524 Minister for Immigration and Border Protection v Kim [2014] FCAFC 47; (2014) 221 FCR 523 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v Berchet [1794] EngR 1806; (1688) 1 Show 106 (89 ER 480) Re Woolley; Ex parte Applicants M276/2003 [2004] HCA 49; (2004) 225 CLR 1 Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) [1992] HCA 15; (1992) 175 CLR 218 Soondur v Minister for Immigration and Multicultural Affairs [2002] FCAFC 324; (2002) 122 FCR 578 SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936 SZVBN v Minister for Immigration and Border Protection [2017] FCAFC 90; (2017) 254 FCR 393 WZAOT v Minister for Immigration and Citizenship [2013] FCA 136; (2013) 211 FCR 543 |
| Applicant: | CTU17 |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 1980 of 2017 |
| Applicant: | CTV17 |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 1977 of 2017 |
| Applicant: | CTW17 |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 1978 of 2017 |
| Judgment of: | Judge Barnes |
| Hearing date: | 15 August 2017 |
| Date for Last Submissions: | 29 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 28 February 2019 |
REPRESENTATION
SYG 1980 of 2017
| Counsel for the Applicant: | Mr Prince |
| Solicitor for the Applicant: | Michaela Byers, Solicitor |
| Counsel for the Respondent: | Mr Kaplan |
| Solicitors for the Respondent: | Australian Government Solicitor |
SYG 1977 of 2017
| Counsel for the Applicant: | Mr Prince |
| Solicitor for the Applicant: | Michaela Byers, Solicitor |
| Counsel for the Respondent: | Mr Kaplan |
| Solicitors for the Respondent: | Australian Government Solicitor |
SYG 1978 of 2017
| Counsel for the Applicant: | Mr Prince |
| Solicitor for the Applicant: | Michaela Byers, Solicitor |
| Counsel for the Respondent: | Mr Kaplan |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
SYG 1980 of 2017
The parties are to bring in short minutes of orders to give effect to these reasons within 7 days.
If the parties are unable to agree on the form of orders, each party is to file written submissions within 7 days.
SYG 1977 of 2017
The parties are to bring in short minutes of orders to give effect to these reasons within 7 days.
If the parties are unable to agree on the form of orders, each party is to file written submissions within 7 days.
SYG 1978 of 2017
The parties are to bring in short minutes of orders to give effect to these reasons within 7 days.
If the parties are unable to agree on the form of orders, each party is to file written submissions within 7 days.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1980 of 2017
| CTU17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
SYG 1977 of 2017
| CTV17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
SYG 1978 of 2017
| CTW17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Background
On 22 June 2017 five children, who were siblings and all aged under 18, sought judicial review of five separate determinations by an officer (the delegate) in the Department of Immigration made on 22 June 2017 that their applications for protection visas lodged on 20 June 2017 were invalid.
The children were assigned the pseudonyms CTU17, CTV17, CTW17, CTX17 and CTY17. Their parents were appointed ligation guardians.
CTX17 and CTY17 are no longer parties to the proceedings. As acknowledged in submissions for the Respondent, CTY17 acquired Australian citizenship by reason of s.12(1)(b) of the Australian Citizenship Act 2007 (Cth) upon attaining the age of 10, as he was born in Australia in August 2007 and was ordinarily resident in Australia throughout the period of 10 years beginning on the day he was born. He filed a notice of discontinuance on 17 August 2017. CTX17 was born in Australia in September 2008. On 4 October 2018 he filed a notice of discontinuance. Any further reference to the Applicants is a reference to CTU17, CTV17 and CTW17. The Applicants now rely on amended applications filed on 24 July 2017.
The Applicants are children of a Fijian couple. CTU17 was born in Fiji in 2000. CTV17 was born in Fiji in 2001. CTW17 was born in Fiji in 2004. They came to Australia in 2006.
On 19 November 2010 the Applicants’ father made an application for a protection visa. He included his wife and the children (including the Applicants) as members of his family unit. None of the Applicants (at that time aged 10, 9 and 6) signed any part of the 2010 visa application forms. Their father signed the forms, including the Declarations and Australian Values Statements on the Part D Forms completed for each of the children. This application is referred to as “the 2010 application”.
In the 2010 application the father made claims to fear harm in Fiji said to arise from his position and activities as a police officer during the 2000 military coup. He also expressed a general concern that he and his family would be in danger if they returned to Fiji because of the possibility of retribution from rebel soldiers who had been released from prison. He relied on the Refugees Convention criterion (see s.36(2)(a) of the Migration Act 1958 (Cth) (the Act)).
On 29 June 2011 a delegate of the Minister refused the 2010 application. The delegate was not satisfied that the father had a real chance of being subjected to harm amounting to persecution for a Convention reason in Fiji. The applications of his wife and the children as members of his family unit were also refused.
The Applicants’ father sought review of the delegate’s decision (including his family members in the review application) on 12 August 2011. On 6 October 2011 the Refugee Review Tribunal determined that it did not have jurisdiction, as the application was not received until after the prescribed period for seeking review had expired.
On 20 June 2017 the Applicants’ representative sent 5 separate protection visa applications to the Department on behalf of the children. The visa application forms were signed by the Applicants’ father. The claims for protection made by each child were the same in essential respects. It was claimed that the child could be harmed by persons who had been arrested by their father in the past, but had later been released from prison and may seek revenge. Concerns were also raised about conditions in Fiji. In particular, it was claimed that a reduction in the child’s standard of living due to poverty, lack of access to quality healthcare and clean drinking water, the interruption to his or her education and/or limited access to secondary education would cause him or her to be treated in an inhumane, cruel and degrading manner. It was claimed that Fiji could not provide the child with a standard of living adequate for his or her physical, mental, spiritual, moral and social development. Reference was made to Article 27 of the United Nations Convention on the Rights of the Child. The visa applications of the Applicants are referred to as “the 2017 applications”.
In relevantly identical terms, in separate covering letters to the Department in relation to each of the 2017 applications, the Applicants’ migration agent disclosed that each Applicant had previously been included as a dependent applicant in his or her father’s protection visa application (the 2010 application). However it was claimed that the 2017 applications were made “in reliance on the Full Federal Court judgment in SZVBN v Minister for Immigration [2015] FCCA 2977 (sic) concerning the parental authority and the legal capacity of children and in such circumstances s 48A does not render this application invalid”. It is apparent that the reference to the citation for SZVBN is intended to be a reference to [2017] FCAFC 90.
On 22 June 2017 the children were notified that their applications were invalid. Each notification stated:
A decision has previously been made to refuse to grant you a protection visa, or you have had a protection visa cancelled. Under section 48A of the Migration Act 1958 a person who has not left Australia since their protection visa was refused or cancelled is prevented from making a subsequent protection visa application while they remain in Australia.
In the meantime, on 21 June 2017 the Department had given all the children notice of intention to remove them from Australia on 24 June 2017.
In the judicial review proceedings commenced on 22 June 2017, the children each sought an injunction preventing removal from Australia until final determination of this matter. I made such orders.
As the same legal issues were raised in each matter, the proceedings were joined and an order was made that evidence in one matter be evidence in the others. The matters were heard together.
In support of their judicial review applications, the Applicants relied on their amended applications, affidavits of their father and mother each affirmed on 28 July 2017 and an affidavit of the oldest child, CTU17, of 24 July 2017 in relation to her knowledge of the 2010 application.
The Law
Before considering the grounds in the amended applications, it is convenient to set out relevant statutory provisions and to refer to the legislative history relied on in submissions, in particular, in relation to ss.48A(1AA), (1C) and (2)(aa) of the Act.
As at the date of the 2017 applications (20 June 2017) ss.46, 47 and 48A of the Act relevantly provided:
46 Valid visa application
Validity—general
(1) Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:
…
(d) it is not prevented by any provision of this Act ... including, without limitation, the following provisions of this Act:
…
(ii) section 48A (protection visa refused or cancelled earlier);
...
47 Consideration of valid visa application
(1) The Minister is to consider a valid application for a visa.
…
(3) To avoid doubt, the Minister is not to consider an application that is not a valid application.
(4) To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.
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.
(1AA) Subject to section 48B, if:
(a) an application for a protection visa is made on a non-citizen's behalf while the non-citizen is in the migration zone; and
(b) the grant of the visa has been refused, whether or not:
(i) the application has been finally determined; or
(ii) the non-citizen knew about, or understood the nature of, the application due to any mental impairment; or
(iii) the non-citizen knew about, or understood the nature of, the application due to the fact that the non-citizen was, at the time the application was made, a minor;
the non-citizen 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.
…
(1B) Subject to section 48B, a non-citizen in the migration zone who held a protection visa that was cancelled may not make a further application for a protection visa while in the migration zone.
(1C) Subsections (1) and (1B) apply in relation to a non-citizen regardless of any of the following:
(a) the grounds on which an application would be made or the criteria which the non-citizen would claim to satisfy;
(b) whether the grounds on which an application would be made or the criteria which the non-citizen would claim to satisfy existed earlier;
(c) the grounds on which an earlier application was made or the criteria which the non-citizen earlier claimed to satisfy;
(d) the grounds on which a cancelled protection visa was granted or the criteria the non-citizen satisfied for the grant of that visa.
(1D) In paragraphs (1)(a) and (b) and (1AA)(a) and (b), a reference to an application for a protection visa made by or on behalf of a non-citizen includes a reference to an application for a protection visa that is taken to have been made by the non-citizen by the operation of this Act or a regulation.
(1E) In subsection (1B), a reference to the cancellation of a protection visa includes a reference to the cancellation of a protection visa in relation to which an application for a protection visa is taken to have been made by the operation of this Act or a regulation.
(2) In this section:
application for a protection visa means:
(aa) an application for a visa of a class provided for by section 35A (protection visas--classes of visas), including (without limitation) an application for a visa of a class formerly provided for by subsection 36(1) that was made before the commencement of this paragraph; or
Note: Visas formerly provided for by subsection 36(1) are provided for by subsection 35A(5). Subsection 36(1) was repealed by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, which also inserted section 35A and this paragraph.
(aaa) an application for a visa, a criterion for which is that the applicant is a non-citizen who is a refugee; or
(a) an application for a visa, or entry permit (within the meaning of this Act as in force immediately before 1 September 1994), a criterion for which is that the applicant is a non-citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol; or
(b) an application for a decision that a non-citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; or
(c) an application covered by paragraph (a) or (b) that is also covered by section 39 of the Migration Reform Act 1992.
Section 48A was inserted in the Act by Act No. 102 of 1995. It has been amended at various times, as outlined below where relevant.
Immediately prior to March 2012, s.48A(2)(aa) had provided that “application for a protection visa includes”:
(aa) an application for a visa, a criterion for which is that the applicant is a non‑citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol…
At the time of the 2010 application and decision the complementary protection criterion (now see s.36(2)(aa)) did not exist. It was introduced by the Migration Amendment (Complementary Protection) Act 2011 (Cth) (Act No. 121 of 2011) (the CP Act) and commenced on 24 March 2012. The CP Act also repealed subparagraph 48A(2)(aa) by item 16 in Schedule 1 to the Act and replaced it with a provision that referred to “an application for a visa, a criterion for which is mentioned in paragraph 36(2)(a), (aa), (b) or (c)” thus including reference to the complementary protection criterion in s.36(2)(aa) and the associated family unit criterion in s.36(2)(c) of the Act.
Section 48A(2)(aa) was again repealed and replaced by the Migration Amendment Act 2014 (Cth)(Act No. 30 of 2014) which commenced on 28 May 2014. This Act also introduced new s.48A(1C) of the Act in the form set out at [17] above. This provision has not subsequently been amended. Section 48A(1C) refers only to ss.48A(1) and (1B) of the Act. It states that those provisions apply regardless of the grounds or criteria relied on in any earlier or proposed protection visa application. As discussed below, these amendments were introduced after the decision of the Full Court of the Federal Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235 in relation to the operation of s.48A(1) of the Act. It is convenient to refer to this Act as the “post-SZGIZ Act”.
The version of s.48A(2)(aa) introduced by the post-SZGIZ Act in May 2014 relevantly provided that “application for a protection visa includes”:
(aa) an application for a visa that, under this Act or the regulations as in force at any time, is or was a visa of the class known as protection visas.
Section 48A(1AA) was inserted in s.48A by the Migration Legislation Amendment Act (No.1) 2014 (Cth) (Act No. 106 of 2014) (the Amendment Act). This amendment commenced on 25 September 2014. Under the transitional provisions in item 6(3)(a) in Schedule 1 to the Amendment Act, s.48A(1AA) applies to a decision to refuse to grant a protection visa to a non-citizen that was made before 25 September 2014, if the further application was made by or on behalf of the non-citizen on or after that day, as well as to a decision to refuse to grant a protection visa made on or after the commencement date.
Section 48A(1C) was in force at the time s.48A(1AA) was introduced in September 2014. It was not amended at that time.
Subsequently, s.48A(2)(aa) was again repealed and replaced by item 11 in Schedule 2 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (No. 135 of 2014) (the RALC Act) which commenced on 16 December 2014. By item 10, the introductory word “includes” was replaced by “means”. The new s.48A(2)(aa) refers to an application for a visa of a class provided for by s.35A of the Act, including an application for a class of visa formerly provided for by s.36(1) that was made before the commencement of the new s.48A(2)(aa) on 16 December 2014. This was the version of s.48A(2)(aa) in force at the time of the 2017 applications.
By virtue of item 19(1)(c) in Schedule 2 to the RALC Act this new version of s.48A(2)(aa) (being an amendment made by Division 1 of Part 1 in Schedule 2 to the RALC Act) relevantly applied:
… in relation to an application for a protection visa mentioned in paragraph 48A(1)(a) or (b), or paragraph 48A(1AA)(a) or (b), of that Act that was made, or taken to have been made:
(i) on or after the commencement of that Division; or
(ii) at any time before the commencement of that Division (whether or not the application had been finally determined at that time).
Sections 48A(1D) and (1E) were also inserted in the Act by item 23 in Schedule 2 to the RALC Act. Subsection (1D) is expressed to apply to paragraphs (a) and (b) of s.48A(1AA).
At the time of the 2010 application, s.36(1) of the Act was as follows:
36 Protection visas
(1) There is a class of visas to be known as protection visas.
Section 36(2) relevantly made it a criterion for the grant of a protection visa that the applicant was either a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol (s.36(2)(a)), or a non-citizen in Australia who was a member of the same family unit as a non-citizen mentioned in subsection (a) who held a protection visa (s.36(2)(b)).
As indicated, s.36(2) was amended by the CP Act to include provisions in relation to the complementary protection criterion for a protection visa.
However, s.36(1) was not amended between 19 November 2010 and its repeal by the RALC Act, as at 16 December 2014.
Section 35A was inserted in the Act, in lieu of s.36(1), by s.3 and item 5 in Schedule 2 to the RALC Act. As at 20 June 2017 (the date of the 2017 applications) s.35A relevantly provided:
Protection visas – classes of visas
(1) A protection visa is a visa of a class provided for by this section.
(2) There is a class of permanent visas to be known as permanent protection visas.
Note: These visas were classified by the Migration Regulations 1994 as Protection (Class XA) visas when this section commenced.
(3) There is a class of temporary visas to be known as temporary protection visas.
Note: These visas were classified by the Migration Regulations 1994 as Temporary Protection (Class XD) visas when this section commenced.
…
(5) A class of visas that was formerly provided for by subsection 36(1), as that subsection was in force before the commencement of this section, is also a class of protection visas for the purposes of this Act and the regulations.
Example: An example of a class of visas for subsection (5) is the class of visas formerly classified by the Migration Regulations 1994 as Protection (Class AZ) visas. These visas can no longer be granted.
Note: This section commenced, and subsection 36(1) was repealed, on the commencement of Part 1 of Schedule 2 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.
(6) The criteria for a class of protection visas are:
(a) the criteria set out in section 36; and
(b) any other relevant criteria prescribed by regulation for the purposes of section 31.
At the time of the 2010 application, reg.2.07(1) of the Migration Regulations 1994 (Cth) (the Regulations) provided that for the purposes of ss.45 and 46 of the Act certain matters including the approved form and the visa application charge payable were set out in the relevant part of Schedule 1.
As at 19 November 2010, item 1401 in Schedule 1 to the Regulations specified these and other formal requirements in relation to protection visa applications. It also relevantly provided that an application by a person claiming to be a member of the family unit of a person who was an applicant for a protection visa may be made at the same time and place as, and combined with, the application by the latter person.
The Amended Applications
Each of the Applicants relies on an amended application which contains four grounds. The grounds are identical, save for the references in ground 1 to the gender of the particular Applicant.
Ground 1 in CTU17’s amended application is as follows:
1. The delegate’s decision of 22 June 2017 make (sic) a jurisdictional error by failing to exercise jurisdiction.
Particulars
a. The delegate considered the applicant’s application not to be valid;
b. The basis for validity (sic) identified by the delegate was s48A of the Migration Act 1968 (sic) Cth (“the Act”);
c. The delegate was wrong to invoke s48A of the Act which, in accordance with the judgment of the Full Federal Court in Minister for Immigration v Kim (2014) 221 FCR 223 and SZVBN v Minister for Immigration [2017] FCAFC 90 did not apply on the ground that the applicant was 10 years old when she was included as a family member of her father in her father’s protection visa application on 19 November 2010; and
d. The applicant has received a notice of intention to remove from Australia on Saturday 24 June 2017.
It was explained in the Applicants’ submissions that the reference to “validity” in particular (b) to ground 1 was intended to be a reference to “invalidity”.
All of the Applicants were described in particular (c) as 10 years old in November 2010, but the submissions proceeded on the basis that CTU17 was 10, CTV17 was 9 and CTW17 was 6 years old as at 19 November 2010.
Ground 2 in each amended application is, as follows:
2. The Delegate failed to consider and determine whether the application made by the applicant’s father was an application for a protection visa which was made on the applicant’s behalf for the purposes of s48A(1AA)(a) of the Migration Act.
Similarly, ground 3 is in the same form in each amended application. It is as follows:
3. The Delegate erred by applying s48A of the Migration Act to refuse jurisdiction in circumstances where the jurisdictional fact necessary for the application of s48A was absent, namely that the application made by the applicant’s father on 19 November 2010 was not an application for a protection visa made on the applicant’s behalf.
Finally, ground 4 in each of the amended applications is:
4. In the alternative, the Delegate erred by finding that an application for a protection visa made by the applicant’s father prior to the enactment of s48(1AA) (sic) was an application that was capable of answering the description of an application which is made for the purposes of s48A(1AA).
Particulars
The use of the present tense in the principal provision of s48(1AA) (sic) cannot apply to an application that was made prior to the commencement of that provision.
(emphasis in original)
The references to s.48(1AA) in this ground are intended to be references to s.48A(1AA) of the Act.
When these proceedings first came before the court (in the context of the hearing of applications for urgent interim injunctions restraining removal of the Applicants from Australia) their applications contained only ground 1. Their solicitor submitted that s.48A(1AA) did not apply to the 2010 application on the basis that it only applied to protection visa applications made after its introduction on 25 September 2014. Reliance was placed on remarks in SZVBN v Minister for Immigration and Border Protection [2017] FCAFC 90; (2017) 254 FCR 393 (in particular at [86] and [88]) on the basis that the relevant provision in s.48A was s.48A(1) of the Act. It was contended that none of the Applicants had “made” the 2010 application such as to enliven the operation of s.48A(1) of the Act, as they were too young to have any knowledge or understanding and did not have the requisite legal capacity to make a protection visa application in November 2010.
At the hearing of the application for interlocutory injunctions, the Applicants submitted that s.48A(1AA) did not apply retrospectively, and contended that even if it did apply, it would not allow what was described as the delegate’s “summary refusal” to consider the 2017 applications, because no inquiry had been made by the delegate into whether or not the 2010 application was made “on behalf of” each Applicant. It was submitted that the type of factual enquiry described by Griffiths J in SZVBN also had to be conducted (by the delegate) in the context of a consideration of s.48A(1AA) of the Act and that this had not occurred.
The Minister maintained the contention that the applicable provision in s.48A was s.48A(1AA) and that it operated to render the 2017 applications invalid. I granted the interlocutory injunctions sought and the matter proceeded to final hearing. Subsequently, the Applicants filed the amended applications described above.
The Applicants’ submissions characterised the issues raised by all the grounds of review in the amended applications as going to the “ultimate issue” of whether the delegate had erred “by refusing to exercise jurisdiction to make a decision” on the 2017 applications.
The first “issue” was said to be the question of whether the delegate had misconstrued s.48A of the Act because his approach was not consistent with the reasoning in SZVBN.
The second “issue” was whether the delegate had erred in failing to consider and apply s.48A(1AA) or, to the extent that he did apply s.48A(1AA), whether he had correctly construed that provision in finding that the 2017 applications were invalid. In that context, particular issue was taken with the delegate’s failure to inquire into whether the 2010 application was made “on behalf of” each of the Applicants.
Finally, and notwithstanding the absence of an express ground to this effect, the Applicants raised a further contention. It was submitted that if s.48A(1AA) was the “relevant” provision and if the 2010 application was made “on behalf of” each Applicant, nonetheless, having regard to the fact that s.48A(1C) did not apply to s.48A(1AA), on the reasoning in SZGIZ s.48A(1AA) did not extend the bar on a further protection visa application to the 2017 applications which relied on the complementary protection criterion which was not in existence in 2010.
Despite the fact that this aspect of the Applicants’ submissions appeared to raise a ground which had not been pleaded clearly, the Respondent did not object and addressed it in similarly brief written submissions which relied, in essence, on the presence in s.48A of s.48A(2)(aa) as amended in response to SZGIZ. Both parties made further oral submissions on this issue and the Respondent sought, and was given, leave to file post-hearing submissions addressing an argument that was first raised by counsel for the Applicants in oral submissions in reply.
Preliminary Issues
Before considering the issues raised by the Applicants, it is appropriate to address two preliminary matters raised by the Respondent in response to the Applicants’ written submissions.
In written submissions the Applicants appeared to contend that the delegate had “refused” each of their 2017 applications. Issue was taken with the notification letters on the basis that these represented the delegate’s reasons.
The Applicants submitted that the delegate had erred in not expressly addressing the reasons for his conclusion as to the invalidity of the 2017 applications and in failing to conduct and advert to a factual inquiry into the circumstances of the 2010 application in accordance with the approach taken in SZVBN.
The Applicants submitted that it was necessary for the delegate to engage in analysis or reasoning concerning whether the 2010 application had been made on their “behalf” and to conduct a factual inquiry as to their age and capacity to understand the nature of such an application.
It was also submitted that in considering the validity of the 2017 applications the delegate should have addressed the question of the impact or relevance, if any, of s.48A(1AA) and the fact that the 2010 application was made prior to the introduction of the complementary protection criterion.
The Respondent contended that the Applicants’ written submissions had proceeded on a fundamental misunderstanding of the effect of the departmental officer's determination as to the validity of the visa applications which was reflected in their criticism of the officer’s failure to make particular findings of fact.
The Respondent submitted that the departmental officer’s determinations were not refusals, but notifications as to invalidity of the 2017 applications and that such notifications were merely an expression of an opinion as to the operation of, relevantly, s.48A of the Act. It was submitted that the departmental officer was not purporting to exercise any power under the Act (such as under s.47 or s.65) that determined any right of any of the Applicants and that the officer had not “refused” the 2017 applications.
It was also submitted that the validity of the 2017 applications was a matter for the court to decide. The Respondent’s submissions proceeded on the basis that s.48A(1AA) was the applicable provision in s.48A of the Act.
In oral submissions counsel for the Applicants explained that while the amended applications contained four “grounds”, all the grounds were directed to different manifestations of the same “problem”, which was that the delegate’s findings that the 2017 applications were not valid and his “refusal to entertain” those applications constituted jurisdictional error because there was a failure by the delegate to exercise jurisdiction.
Counsel for the Applicants indicated that he did not press arguments in his written submissions and/or the grounds of review based on s.48A(1) of the Act. It was acknowledged that, as the Respondent submitted, the relevant provision in s.48A was s.48A(1AA) (not s.48A(1)). Contrary to the earlier submissions, the Applicants appeared to accept that the issue of the validity of the 2017 applications was for the court to determine. It was suggested that the grounds of review (in particular, ground 3) raised issues about the existence of a jurisdictional fact.
In Minister for Immigration and Border Protection v Kim [2014] FCAFC 47; (2014) 221 FCR 523 the Full Court of the Federal Court found (at [25]-[28]) that the validity of a visa application is an objective question which the court should decide. In reaching that conclusion their Honours observed that the factors or criteria by reference to which an application for a visa is valid are stated objectively in s.46 of the Act and “do not rest in the Minister’s or an officer’s discretion or opinion” (at [26]). The Court also noted that s.47 of the Act “imposes obligations on the Minister, as opposed to conferring a discretion on him or her” and found that these considerations “point in favour of validity being an objective question for the court and we so find” (at [26]).
The Applicants referred to SZVBN in support of the proposition that it was for the delegate to conduct a factual inquiry into the legal competence and understanding of the Applicants in November 2010. However, Griffiths J (with whom Robertson J and Wigney J agreed) made the point in SZVBN at [88(6)] that the requisite factual inquiry (in that case as to whether non-adult applicants had “made” a protection visa application in which they were included as members of a parent’s family unit within s.48A(1) of the Act) was to be conducted by this court.
As the Respondent submitted, in forming a view about the validity of each of the 2017 applications as reflected in the notification letters of 22 June 2017, the departmental officer did not “refuse” the visa applications. Rather, the officer made an assessment that each application was invalid. Indeed, s.47(4) of the Act makes it clear that “a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa” (and see SZVBN at [28] per Griffiths J). What the departmental officer said about the validity of each visa application is not determinative and the failure of the officer to refer to s.48A(1AA) is not, in itself, indicative of jurisdictional error (insofar as this appeared to be contended by the Applicants, at least initially). I note, in any event, that s.48A(1AA) is within s.48A of the Act, to which the delegate did refer.
In other words, while it is competent for a departmental officer to form a view about the validity of a visa application for himself or herself, ultimately it is for the court to resolve any controversy in that respect. Relevantly, having regard to the Applicants’ criticisms of the departmental officer’s failure to make particular findings of fact, the Full Court went on to state in Kim at [27]:
We accept the appellant Minister’s submission that an application for a visa is valid or not regardless of the Minister’s view, or any officer’s view, about the matter...
Kim involved consideration of whether a visa application was invalid under s.48 of the Act. However the Full Court’s view that the validity of a visa application is an objective question which the court should decide is equally applicable where there is a dispute as to the application of s.48A.
To the extent that there remains any issue in this respect, I am satisfied that as there is a dispute between the parties as to the validity of the 2017 applications, it is for the court to resolve that controversy.
Accordingly, insofar as the Applicants maintained any contention in the grounds of review that the delegate erred in failing to provide reasons which identified and engaged with a relevant part of the statutory test (whether in ss.48A(1) or 48A(1AA)), in failing to refer to principles of statutory construction in considering s.48A of the Act, or in failing to engage in analysis and reasoning of the sort described in SZVBN, these matters are not such as to establish jurisdictional error.
It is clear that the determinative issue in these proceedings is the validity of the visa applications purportedly made on 20 June 2017. If the 2017 applications were not rendered invalid by any provision in s.48A of the Act, it would appear that declarations to that effect would be appropriate and the Applicants would, prima facie, be entitled to orders in the nature of mandamus to require the Respondent to consider and determine their 2017 applications according to law (see Kim at [27] and SZGIZ at [74]).
The question whether the 2017 applications were valid applications within the meaning of s.46 of the Act such that the Minister was obliged to consider them under s.47(1) of the Act ultimately depends on whether such 2017 applications were prevented by s.48A(1AA) of the Act (see s.46(1)(d)(ii)). I have considered all the issues raised by the Applicants, while bearing in mind that the validity of the 2017 applications is an objective question for the court to determine.
The SZGIZ issue
The most significant issue raised by the Applicants is the contention that if s.48A(1AA) is the operative provision (as the Respondent submitted) and even if the 2010 application was made “on behalf of” the Applicants, nonetheless this provision did not prevent them from making the 2017 applications based on the complementary protection criterion which did not exist at the time of the 2010 application.
Apparently in explanation for the late time at which this issue was raised, it was suggested in the Applicants’ pre-hearing written submissions (prepared after the interlocutory hearings) that “the s.48A(1AA) grounds” in the amended applications arose “because of the reconstruction of the Delegate’s reasons by the Minister at the interlocutory hearing of this matter whereby he argued that the decision was authorized by s48A(1AA) which is a provision to which the Delegate never made any reference in his decision expressly or by implication”.
The Applicants’ written submissions in this respect were brief and focused on the approach taken by the delegate. It was acknowledged that s.48A(1AA) was a more relevant basis for any bar on a further protection visa application.
In essence, the Applicant submitted that if s.48A(1AA) was the relevant provision, because it was not subject to s.48A(1C) (which applies to s.48A(1)), the reasoning in SZGIZ has not been excluded and hence that the delegate erred because he had failed to consider whether the Applicants’ 2017 applications included complementary protection claims under s.36(2)(aa) of the Act which could not have been made at the time of the 2010 application. Alternatively, it was contended that if the issue of validity was a matter for the court, as a matter of construction, s.48A(1AA) did not prevent the 2017 applications based on the complementary protection criterion that was not, and could not have been, relied on in the 2010 application.
Section 48A(1C) is as follows:
(1C) Subsections (1) and (1B) apply in relation to a non‑citizen regardless of any of the following:
(a) the grounds on which an application would be made or the criteria which the non‑citizen would claim to satisfy;
(b) whether the grounds on which an application would be made or the criteria which the non‑citizen would claim to satisfy existed earlier;
(c) the grounds on which an earlier application was made or the criteria which the non‑citizen earlier claimed to satisfy;
(d) the grounds on which a cancelled protection visa was granted or the criteria the non‑citizen satisfied for the grant of that visa.
As discussed further below, in SZGIZ the Full Court of the Federal Court held that s.48A(1) of the Act (as it stood on 10 October 2012) did not prevent a person from making a further protection visa application based on the complementary protection criterion where it had not been the basis for an earlier unsuccessful protection visa application.
The Respondent addressed this issue in similarly brief written submissions which relied on s.48A(2)(aa) of the Act. It was submitted that the fact that s.48A(1C) did not refer to s.48A(1AA) was “immaterial” in light of the presence of s.48A(2)(aa) of the Act. The Respondent contended that as the application made on 19 November 2010 was an “application for a protection visa” as defined in s.48A(2)(aa), namely, an application for a visa of a class formerly provided for by s.36(1) made prior to the commencement of that paragraph and was within s.48A(1AA) of the Act, s.48A(1AA) applied to prevent (and render invalid) the 2017 applications.
The Respondent pointed out that subparagraph 48A(2)(aa) as in force in 2017 was inserted in the Act by item 11 in Schedule 2 to the RALC Act which commenced on 16 December 2014. It was submitted that by reason of item 19(1)(c)(ii) in Schedule 2 to that Act, this version of s.48A(2)(aa) applied in respect of an “application for a protection visa” mentioned in s.48A(1AA) that was made at any time before 16 December 2014 (as well as to such an application made after that date) and that thus it applied to the 2010 application in the present case.
There was elaboration of this new, potentially significant, ground in oral submissions. However I did not have the benefit of considered submissions of the nature and extent that might have been expected in relation to such a matter (even at first instance).
Further, the Applicants raised a fresh matter in relation to this issue in oral submissions in reply (concerning ss.48A(2)(aa) and 35A(5) of the Act). The Respondent sought and took the opportunity to file post-hearing submissions in this respect. The Applicants did not file further written submissions in reply.
In oral submissions, the Applicants pointed out that s.48A(1C) (together with a new version of s.48A(2)(aa)) was inserted in the Act by Act No. 30 of 2014 (the post-SZGIZ Act) and commenced on 28 May 2014. This was the amending legislation intended to overcome the effect of SZGIZ (see the Explanatory Memorandum to the Migration Amendment Bill 2013, Outline and paragraphs 118-138).
While s.48A(1AA) was introduced by later legislation (the Amendment Act which, relevantly, commenced on 25 September 2014), the Applicants observed that this Amendment Act did not amend s.48A(1C) to include a reference to s.48A(1AA) of the Act. Nor was s.48A(1C) subsequently amended. However the post-SZGIZ version of s.48A(2)(aa) was repealed and replaced by the RALC Act (which, as indicated, also inserted new subsections (1D) and (1E) in s.48A of the Act).
The Applicants submitted that it was apparent that it was the insertion of s.48A(1C) that was to overcome the effect of SZGIZ in relation to s.48A(1) of the Act and that while the amendment to s.48A(2)(aa) was complementary, it was not critical. It was submitted that what was critical was that s.48A(1AA) was not conditioned by s.48A(1C) (which refers only to s.48A(1) and (1B) of the Act).
It was submitted that, as had been reasoned in SZGIZ in relation to s.48A(1) of the Act, as a matter of statutory construction s.48A(1AA) did not preclude the making of a further protection visa application by any of the Applicants on grounds or criteria which did not exist at the time of the 2010 application.
Insofar as the Respondent submitted that s.48A(2)(aa) precluded such an argument, the Applicants contended that this provision could not in itself be an answer to SZGIZ as otherwise s.48A(1C) would be redundant (cf Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355). It was submitted that all that s.48A(2)(aa) did (in its post-RALC Act form), was to bridge the gap between the restructuring of ss.35A and 36 in the Act and that it did not, and could not, deal with the reasoning in SZGIZ.
The Applicants submitted that it was unproductive to speculate as to whether the failure to include a reference to s.48A(1AA) in s.48A(1C) was a drafting accident or oversight. There was, in any event, said to be a sound policy basis for not extending the s.48A(1AA) preclusion to circumstances beyond the control of the person affected where an earlier protection visa application had been made “on behalf of” such a person, notwithstanding the person’s lack of knowledge. On this basis it was contended that the legislation should be read “contra proferentem” insofar as there was any ambiguity.
The Applicants pointed out that the 2010 application was made before the complementary protection provisions were introduced. It was submitted that the 2017 applications clearly raised claims relying on the complementary protection criterion. While the Applicants did not refer to any particular aspect of their claims in support of this proposition, in each of their 2017 applications (which are in the Courtbook) each Applicant claimed to fear harm for reasons said to involve treatment in a cruel or inhumane or degrading manner (see ss.36(2)(aa), 36(2A) and the s.5(1) definitions of significant harm referred to in s.36(2A) of the Act).
On this basis it was submitted that s.48A(1AA) did not prevent the 2017 applications.
In essence, the Respondent contended that the absence of any reference to s.48A(1AA) in s.48A(1C) was of no relevant consequence and that while s.48A(1C) put beyond doubt Parliament’s intention to overcome the reasoning in SZGIZ and to make it clear that a non-citizen would come within s.48A if he or she had previously applied for a class of visa known as a protection visa (irrespective of the criterion relied upon), s.48A(2)(aa) was sufficient to achieve this result.
The Respondent acknowledged that both ss.48A(1C) and 48A(2)(aa) were enacted to overcome SZGIZ (as explained in the Explanatory Memorandum to the Bill which became the post-SZGIZ Act) but submitted that notwithstanding the failure to amend s.48A(1C) to refer to s.48A(1AA), s.48A(2)(aa) as in force at the time of the 2017 applications (as introduced in the RALC Act), was broad enough to overcome an SZGIZ argument. This was said to be clear when regard was had to the text, purpose and history of amendments to s.48A(2)(aa) of the Act.
The Respondent submitted that it was critical that s.48A(2)(aa) did not focus on the criteria for a protection visa, but had been couched in broader terms since the post-SZGIZ amendments. It was contended that the 2010 application met the description of an application for a visa of a class formerly provided for by s.36(1) (as referred to in s.48A(2)(aa)) at the time of the 2017 applications, because in 2010 s.36(1) had provided:
(1) There is a class of visas to be known as protection visas.
It was also said to be clear that the 2017 applications were within the s.48A(2)(aa) definition as applications for a class of visa provided for by s.35A of the Act (see ss.35A(1) and (2) set out at [32] above) .
As a model litigant, the Respondent drew the Court’s attention to AZABF v Minister for Immigration and Border Protection [2015] FCAFC 174; (2015) 235 FCR 150. In AZABF the Full Court of the Federal Court considered whether, after the post-SZGIZ amendments, s.48A(1) of the Act applied to prevent a further protection visa application based on complementary protection grounds. At the time under consideration in AZABF, s.48A(1AA) was not in force. The Court observed at [25]-[27]:
25. The terms of ss 48A(1), 48A(1C), 48A(2)(aa) and 36(2)(aa) of the Act read together act as a bar to the lodgement by the appellant of his second application for a protection visa. In particular, we note:
· section 48A(1C)(b), which provides that s 48A(1) applies such that a non-citizen who has made a previously unsuccessful application for a protection visa may not make a further application for a protection visa, whether the grounds on which an application would have been made or the criteria which the non-citizen would claim to satisfy existed earlier;
· section 48A(2)(aa), which defines “application for a protection visa” as including an application for a visa that, under the Act or the regulations in force at any time, is or was a visa of the class known as protection visas; and
· section 36, which is headed “Protection visas – criteria provided for by this Act”, and in particular s 36(2)(aa) which provides that a criterion for a protection visa is that the applicant for the visa satisfy the Minister of (in effect) Australia’s complementary protection obligations to that applicant.
26. It is clear to us that it is irrelevant whether the grounds or criteria on which a non-citizen relies in his or her subsequent protection visa application were available for reliance by that visa applicant at an earlier point in time (including the time when the non-citizen made an earlier protection visa application). We do not accept the submission of the appellant that the language of s 48A(1C)(b) is ambiguous. Section 36(2) unambiguously sets forth the “criterion for a protection visa”. And s 48A(1C) is equally unambiguous when it relevantly provides in s 48A(1C)(b) that a person may not make a further application for a protection visa “regardless of … the grounds on which an application would be made or the criteria which the non-citizen would claim to satisfy existed earlier”. Even though the “criterion” now sought to be relied upon, namely s 36(2)(aa) did not exist as at the date of the earlier application, s 48A(1C)(b) is unambiguous in its prohibition on a further application being made “regardless of … whether” the criterion now relied upon “existed earlier”. We note that the plain language of the legislation is supported by the Explanatory Memorandum, which details the policy behind the introduction of s 48A(1C). In our view the decision of the Full Court in SZGIZ has been superseded by the 2014 Amendment Act, to the extent that that decision permitted a person whose application for a protection visa has been rejected to make another application based on a different criterion in s 36(2) of the Act.
27. In light of the statutory regime following the commencement of the 2014 Amendment Act (and in place at the time the appellant made his second visa application), it follows that it is irrelevant that the appellant could not, in 2009 at the time of his first protection visa application, have relied on the complementary protection provisions in s 36(2)(aa) of the Act. It is not in dispute that the appellant has previously sought, and been denied, a protection visa. Section 48A(1) of the Act prohibits him lodging another application for a protection visa.
(emphasis added)
The Respondent pointed out that the issue that arose in this case had not fallen for determination in AZABF, as s.48A(1AA) did not apply to the circumstances considered therein. It was submitted that the Full Court’s reference to ss.48A(1), 48A(1C), 48A(2)(aa) and 36(2)(aa) “read together” acting as a bar did not detract from reliance in these proceedings on the version of s.48A(2)(aa) in force in 2017.
The Respondent suggested that s.48A(1C) may now be “unnecessary”, given that s.48A(2)(aa) was expressed in materially different terms to those considered to be of significance in SZGIZ.
On this basis the Respondent submitted that it was irrelevant that the Applicants could not have relied on the complementary protection criterion in 2010, as it was said to be clear that they had previously sought and been refused a visa provided for by s.35A of the Act (being a class of visa formerly provided for by s.36(1), that is, a protection visa).
In reply, the Applicants pointed out that the version of s.48A(2)(aa) in effect in 2017 (introduced in December 2014 by the RALC Act) was not in the form introduced in the post-SZGIZ Act. Insofar as s.48A(2)(aa) referred to “an application for a visa of a class formerly provided by subsection 36(1) that was made before the commencement of this paragraph”, it was submitted that this must mean s.36(1) as it stood at the time the RALC Act was introduced and not every prior iteration of s.36(1). This was said to be reinforced by s.35A(5) of the Act which referred to a class of visa formerly provided for by s.36(1) as that subsection was in force before the commencement of s.35A(5).
It was submitted that it was not open to the Respondent to rely on the earlier version of s.48A(2)(aa) which had been inserted by the post-SZGIZ Act. In any event, it was contended that s.48A(2)(aa) did not overcome the fact that Parliament had not extended the operation of s.48A(1C) to applications within s.48A(1AA).
In supplementary written submissions the Respondent addressed his understanding of the Applicants’ contention that the 2010 application was not an “application for a protection visa” within s.48A(2)(aa) because the visas for which the Applicants had applied in 2010 were not within s.35A(5) because they were not applications made under s.36(1) in the particular form it took immediately before the commencement of s.35A on 16 December 2014 under the RALC Act.
The Respondent submitted that there were three answers to this contention. First, it was pointed out that s.35A(5) referred only to s.36(1) and that s.36(1), which had referred to “a class of visas known as protection visas”, had not been amended between 19 November 2010 and its repeal by the RALC Act which took effect at the same time as the commencement of s.35A. The Respondent observed that s.35A(5) did not refer to other provisions of s.36 (such as s.36(2)) which, as amended from time to time, specified criteria for protection visas. Hence it was contended that even if the Applicants’ approach to s.35A(5) was correct, it would not follow that the 2010 applications were not each “applications for a protection visa” as referred to in ss.35A(5) and 36(1) within s.48A(2)(aa) of the Act.
Secondly, it was submitted that the Applicants’ suggested construction of s.35A of the Act involved an unwarranted implication of temporal specificity in the general words “before the commencement of this section” and was not correct. The Respondent contended that s.35A(5) should be read as referring to those classes of visas known as protection visas provided for by s.36(1) at all times prior to the commencement of s.35A(5), consistent with the text and purpose of the Act, and also with the example given under s.35A(5) of the Act, the note to s.48A(2)(aa) and the Explanatory Memorandum to the RALC Bill. It was pointed out that if the Applicants’ suggested construction was correct it would make the “example” provided under s.35A(5) (set out at [32] above) incorrect and would remove a large number of decisions from the jurisdiction of the Administrative Appeals Tribunal (under ss.411(1)(c) and (d)).
Finally, the Respondent submitted that the express words of inclusion in s.48A(2)(aa) as it stood at 20 June 2017 encompassed an application for a visa “of a class formerly provided for by subsection 36(1)” without any reference to a particular point in time. There was said to be no possible basis for limiting those words to refer only to a particular iteration of s.36 of the Act.
The Respondent submitted that it was of no significance that the post-RALC Act version of s.48A(2)(aa) referred to particular sections of the Act, rather than to protection visas generally, given that both post-SZGIZ versions of s.48A(2)(aa) posed the question of whether a non-citizen had applied for a visa of the class known as protection visas and, unlike the version of s.48A(2)(aa) considered in SZGIZ, did not focus on particular criteria.
On this basis the Respondent submitted that the 2017 applications were prevented by s.48A(1AA) and were invalid.
Consideration
The “SZGIZ issue” raised by the Applicants is whether s.48A prevented their 2017 applications for protection visas based on the complementary protection criterion in circumstances where their father’s unsuccessful 2010 application had relied on the Refugees Convention criterion and they had been included as members of his family unit.
As in SZGIZ, this issue turns primarily on the proper construction of s.48A of the Act, but it is the construction of s.48A as in force in June 2017, not as it stood at the time considered in SZGIZ. The reasoning in SZGIZ is not directly applicable, given that the bar in issue in this case is s.48A(1AA) (not s.48A(1)) and the fact that in June 2017 the Act also contained s.48A(1C), as well as an (amended) version of s.48A(2)(aa), and hence s.48A differed significantly from the form considered in SZGIZ.
The approach taken in SZGIZ is nonetheless of relevance, although it is necessary to have regard to the effect of the subsequent amendments to s.48A and to consider s.48A as it stood in June 2017.
SZGIZ involved the question of whether (in October 2012) a visa applicant was entitled to apply for a protection visa based on the complementary protection criterion that had been introduced by the CP Act in circumstances where his earlier 2005 application for a protection visa based on the Refugees Convention criterion had been refused (see SZGIZ at [1]-[9]).
As in this case, a delegate of the Minister had notified SZGIZ that his application was not valid. What was in issue was whether, on its proper construction, s.48A of the Act as it stood in October 2012 operated to invalidate the 2012 visa application.
At that time, s.48A relevantly contained s.48A(1) (in a more limited form than the present version) and a definition of application for a protection visa in s.48A(2) which, as introduced by the CP Act, included in paragraph (aa) “an application for a visa, a criterion for which is mentioned in paragraph 36(2)(a), (aa), (b) or (c)”. Section 48A did not contain ss.48A(1AA), or 48A(1C), (1D) or (1E) at the time in issue in SZGIZ.
The form of s.48A(2)(aa) in force at the relevant time was of significance to the reasoning of the Full Court of the Federal Court in SZGIZ. The Court stated at [28]:
28. Protection visas constitute a class of visas by reason of the operation of s 36(1) of the Act. Were it not for the terms of s 48A(2) of the Act it is highly arguable that s 48A(1) would have the effect (for which the Minister contends) that an unsuccessful prior application for a visa of that class (i.e. a protection visa) would block any further application for a visa of that class while an applicant remained in the migration zone (as the appellant does). However, s 48A(1) must be read in conjunction with the definition in s 48A(2) of “application for a protection visa”. In the Court’s view, that produces a different result.
In SZGIZ at [28]-[32] the Court took into account “the statutory direction” in the then applicable s.48A(2)(aa) in finding that “the proper effect to be given to the term “further”[in s.48A(1)] is that it refers to an application relying upon the same criterion as an earlier application” (see SZGIZ at [37]) (emphasis in original).
It is clear from SZGIZ (at [36]) that it was in circumstances where s.48A(1) was considered in the context of s.48A as a whole, that the use of the adjective “further” in s.48A(1) was seen as a strong indication that the parliamentary intention was to refer only to a further application for a protection visa based on the same criterion.
Section 48A(2)(aa) no longer contains any reference to a criterion for a visa (as distinct from a class of visa). However, the Full Court’s approach in SZGIZ reinforces the fact that, consistent with well-established principles of statutory construction, s.48A(1AA) must be read in conjunction with the other provisions in s.48A including, for present purposes, not only s.48A(2)(aa), but also s.48A(1C) (also see AZABF at [25] and Project Blue Sky at [69]-[71] per McHugh, Gummow, Kirby and Hayne JJ).
I bear in mind that the central task is the construction of a law of Parliament (see SZGIZ at [61]). As the Applicants pointed out, in Project Blue Sky McHugh, Gummow, Kirby and Hayne JJ observed at [69]:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.
(footnotes omitted)
Their Honours acknowledged in Project Blue Sky at [70] that the object is to construe legislation on the prima facie basis that “its provisions are intended to give effect to harmonious goals”, that where conflict exists it must be “alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions” and that this reconciliation may require the hierarchy of provisions to be determined and precedence to be given to the leading provision.
Relevantly, a court must “strive to give meaning to every word” of a provision being construed. As explained in Project Blue Sky at [71], referring to Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 in which Griffith CJ cited R v Berchet [1794] EngR 1806; (1688) 1 Show 106 (89 ER 480), it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.
In that respect, while s.48A(1AA) also refers to a “further” application, I accept that, as the Respondent submitted, the later version of s.48A(2)(aa) does not compel the same conclusion in relation to s.48A(1AA) as was reached in SZGIZ, as it is no longer the presence of one of the stipulated criteria in s.36(2) which determines whether a visa application is an application for a protection visa for the purposes of s.48A of the Act. That is so whether regard is had to s.48A(2)(aa) in the form introduced by the post-SZGIZ Act or as replaced by the RALC Act.
In the present case, however, it is necessary to read s.48A(1AA) in the context of s.48A as it stood in 2017. At that time s.48A included s.48A(1C) which was introduced in May 2014 (that is, before s.48A(1AA)), as well as an amended s.48A(2)(aa). While the definition of application for a protection visa is now broadly expressed by reference to a class of visa, it is s.48A(1C) which explicitly overcomes the limited approach taken to the notion of a “further” protection visa application in SZGIZ when s.48A(1) or s.48A(1B) is in issue. It has the clear and unambiguous effect (see AZABF at [26]) that the limitation on a “further application” for a protection visa in s.48A(1) and s.48A(1B) applies to a further application regardless of whether it relies on the same criteria or grounds as the earlier application and regardless of whether the criteria relied on existed earlier. However, on its face, s.48A(1C) has no application to s.48A(1AA) of the Act.
The Respondent submitted that it was irrelevant that s.48A(1C) did not also refer to s.48A(1AA), because s.48A(2)(aa) sufficed to achieve the result (stated expressly in s.48A(1C) in relation to s.48A(1) and s.48A(1B)) that s.48A(1AA) applied regardless of the grounds or criteria relied on in the earlier or in the “further” protection visa application and hence regardless of whether the criteria relied on in the further application existed earlier.
If this interpretation were correct, it would follow that s.48A(1C) was entirely superfluous, as the same argument could be mounted in relation to ss.48A(1) and 48A(1B).Such a construction would also be contrary to the clear and unambiguous terms of s.48A(1C) which suggest an intention to affect only the application of ss.48A(1) and (1B). It would be contrary to the approach taken in SZGIZ, insofar as the particular subsection in issue is to be read in the context of the other provisions in s.48A. It would offend the principle that a court construing a statutory provision (in this case s.48A) must strive to give meaning to every word of the provision (as considered in Project Blue Sky at [71]).
Moreover, such an approach would not be consistent with the view expressed in AZABF that it was (in that case) ss.48A(1), (1C), (2)(aa) and 36(2)(aa) “read together” that acted as a bar to a further protection visa application (in other words, not simply ss.48A(1) and 48A(2)(aa)). It is not supported by the plain language of s.48A considered as a whole or, as considered below, the legislative history and extrinsic materials in relation to relevant statutory amendments.
It is the case that s.48A(2)(aa) no longer contains the “statutory direction” referred to in SZGIZ at [29] and [32] (and has not done so since the introduction of the post-SZGIZ amendment to s.48A(2)(aa)). However, s.48A now contains s.48A(1C) to which regard must also be had (consistent with the approach taken in AZABF) in construing s.48A(1AA).
Thus, while s.48A(2)(aa) no longer defines “an application for a protection visa” by reference to whether the application is for a visa which relies on a “criterion” mentioned in ss.36(2)(a), (aa), (b) or (c), 48A(1C) now specifically addresses the relevance of the grounds and criteria relied on in the “further” protection visa application for the purposes of ss.48A(1) and 48A(1B). The fact that it does so can be seen as an indication that where s.48A(1C) does not apply (that is, in relation to s.48A(1AA)), the adjective “further” continues to reflect an intention to prevent only a further application for a protection visa based on the same criterion relied on in the earlier unsuccessful application (see SZGIZ at [36]).
The Federal Court in AZABF addressed ss.48A(1C) and 48A(2)(aa) in the context of resolving the question of statutory construction of s.48A(1) posed by the introduction of s.48A(1C) into s.48A of the Act.
As indicated, the Court was of the view (at [25]) that ss.48A(1), (1C), (2)(aa) and 36(2)(aa) “read together” acted as a bar to the lodgement by the appellant of a second protection visa application. In that context their Honours also referred to the effect of s.48A(1C) in finding at [26]:
It is clear to us that it is irrelevant whether the grounds or criteria on which a non-citizen relies in his or her subsequent protection visa application were available for reliance by that visa applicant at an earlier point in time (including the time when the non-citizen made an earlier protection visa application). We do not accept the submission of the appellant that the language of s 48A(1C)(b) is ambiguous. Section 36(2) unambiguously sets forth the “criterion for a protection visa”. And s 48A(1C) is equally unambiguous when it relevantly provides in s 48A(1C)(b) that a person may not make a further application for a protection visa “regardless of ... the grounds on which an application would be made or the criteria which the non-citizen would claim to satisfy existed earlier”. Even though the “criterion” now sought to be relied upon, namely s 36(2)(aa) did not exist as at the date of the earlier application, s 48A(1C)(b) is unambiguous in its prohibition on a further application being made “regardless of ... whether” the criterion now relied upon “existed earlier”. We note that the plain language of the legislation is supported by the Explanatory Memorandum, which details the policy behind the introduction of s 48A(1C). In our view the decision of the Full Court in SZGIZ has been superseded by the 2014 Amendment Act, to the extent that that decision permitted a person whose application for a protection visa has been rejected to make another application based on a different criterion in s 36(2) of the Act.
While s.48A(1AA) was not in issue in AZABF, the approach of the Federal Court to the significance of s.48A(1C) and to the need to “read together” applicable provisions in ss.48A and 36(2) is relevant when considering the application of s.48A(1AA).
Relevantly, for present purposes, in AZABF the Federal Court was not of the view that s.48A(2)(aa) (which at the time in question was in the post-SZGIZ form) in itself achieved the result now contended for by the Respondent in these proceedings. The approach taken in AZABF suggests that without the “unambiguous… prohibition” in s.48A(1C), s.48A(2)(aa) would not “suffice” to prohibit a further protection visa application being made regardless of whether the criterion relied on in the later application existed earlier. It is not apparent that the RALC Act amendment to s.48A(2)(aa) altered this position.
In SZGIZ the Federal Court also considered whether there was anything in any extrinsic material or the legislative history underlying s.48A that was of utility in construing s.48A(1) (SZGIZ at [43], [48]-[50] and [51]-[55]) as it stood at the relevant time. In AZABF the Court referred to the policy behind the introduction of s.48A(1C) in the post-SZGIZ Act detailed in the Explanatory Memorandum to the Bill which became that Act.
Similarly, I have given consideration to such material, while bearing in mind that the task of statutory construction must begin with a consideration of the text itself and that extrinsic materials and historic considerations cannot displace the clear meaning of the text. The language actually employed in the text of legislation “is the surest guide to legislative intention” (see Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47] per Hayne, Heydon, Crennan and Kiefel JJ). Nonetheless, the text “may require consideration of the context, which includes the general purpose and policy of a provision” (Ibid at [47] and see Project Blue Sky at [69] per McHugh, Gummow, Kirby and Hayne JJ). As stated in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936 per Kiefel CJ, Nettle and Gordon JJ at [14] (and see Gageler J at [37]-[39]), while the starting point in ascertaining the meaning of a statutory provision is the text of the statute, at the same time regard is to be had to its context and purpose.
As discussed in SZGIZ at [51]-[55], s.48A was introduced in 1995. The Full Court referred to the terms of s.48A as enacted, to the legislative object of preventing non-citizens from making further applications for protection visas “in certain cases”, and to the 1995 Explanatory Memorandum and Second Reading Speech (at [51]-[54]), before concluding at [55] (in a paragraph cited in AZABF at [10]) that:
While those extrinsic materials make abundantly clear that the intention or purpose of the relevant amendments made by the 1995 Amendment Act was to bar repeat applications for a protection visa (subject to the Minister’s discretion to lift that bar under s 48B), there is no indication that that purpose extended beyond preventing further applications for a protection visa on the same basis as previously sought unsuccessfully. The frequent references to “repeat applications” strongly suggests that the purpose was to prevent an applicant from making a further application which duplicated an earlier application by that applicant, rather than preventing an applicant from making another application for a protection visa based on a different criterion to an earlier unsuccessful application for a protection visa by that applicant.
(emphasis added)
Relevantly, with effect from 24 March 2012, the Act was amended by the CP Act to introduce the complementary protection criterion. At the same time, the then existing s.48A (which did not contain s.48A(1AA)) was amended so that the definition of application for a protection visa in s.48A(2) included in subparagraph (aa) “an application for a visa a criterion for which is mentioned in paragraphs 36(2)(a), (aa), (b) or (c)” (thus incorporating reference to the complementary protection and associated family unit criteria).
As indicated, in SZGIZ (decided on 3 July 2013), the Federal Court held that an application for a protection visa made in reliance on the complementary protection criterion in s.36(2)(aa) was not barred by s.48A of the Act as it then stood by reference only to an earlier unsuccessful application for a protection visa not based on the criterion relied on in the further application.
After the decision in SZGIZ, the post-SZGIZ Act, which commenced on 28 May 2014, inserted s.48A(1C) and repealed and replaced s.48A(2)(aa) as set out at [22] above.
The Outline to the Explanatory Memorandum to the post-SZGIZ Bill (the Migration Amendment Bill 2013 (Cth)) stated:
Schedule 2 of the Bill amends the Migration Act to clarify that section 48A of the Migration Act prevents a non-citizen who has been refused a protection visa (or has had a protection visa cancelled) from applying for a further protection visa while in the migration zone.
The amendments address issues arising from the judgment of the Full Federal Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 (3 July 2013). In that judgment, the Court held that there were effectively different sets of criteria by which a protection visa can be applied for and granted. The Court concluded that section 48A of the Migration Act does not prevent a non-citizen making a further protection visa application based on a criterion which did not form the basis of a previous unsuccessful protection visa application. This outcome is contrary to the policy intention of section 48A, which is that a non-citizen should not be able to make a further protection visa application in the migration zone after a previous protection visa application has been refused or a protection visa held by the person has been cancelled, irrespective of the grounds on which their earlier protection visa application was refused or the grounds on which the cancelled visa was originally granted, and whether or not the grounds or criteria existed earlier.
However at that time s.48A(1AA) was not in s.48A. The remarks about the policy intention of s.48A must refer to the circumstances to which s.48A applied at that time.
Pertinently, and contrary to the Respondent’s contention that s.48A(1C) was unnecessary, in describing the proposed amendments the Explanatory Memorandum drew a distinction between the intended purpose of proposed subsection 48A(1C) and proposed new paragraph 48A(2)(aa).
The insertion of s.48A(1C) was said (at paragraph 126 of the Explanatory Memorandum) to be an amendment which:
…clarifies and restores the intended operation of the statutory bar in section 48A of the Migration Act to prevent a non-citizen who has been refused a protection visa, or held a protection visa that was cancelled, from applying for a subsequent protection visa while in the migration zone, irrespective of the grounds or the criteria on which their application would be made; whether or not the grounds or criteria existed earlier; the grounds or the criteria on which their earlier protection visa application was refused; or the grounds on which the cancelled protection visa was granted or the criteria the non-citizen satisfied for the grant of that visa.
In contrast, the Explanatory Memorandum explained (at paragraphs 130-131) in relation to the new s.48A(2)(aa):
130. This amendment clarifies the definition of “application for a protection visa” in section 48A of the Migration Act to include an application for a visa that, under the Migration Act or the regulations as in force at any time, is or was a visa of the class known as protection visas. It is a clarification of the position and intended meaning of that phrase. It is expressed broadly to ensure all applications for a visa, that is, or was, a visa of the class known as protection visas, including temporary protection (Subclass 785) visas and permanent protection (Subclass 866) visas, are captured for the purposes of section 48A. Any visa created in the future which is a visa of the class known as protection visas will be captured by this provision.
131. This amendment reinforces the intention that the statutory bar in section 48A of the Migration Act applies to prevent a non-citizen, while in the migration zone, who has been refused a protection visa, or held a protection visa that was cancelled, from making a subsequent protection visa application in the migration zone regardless of whether the further protection visa application would be made based on a different criterion to that which formed the basis of a previous unsuccessful protection visa application, or a criterion or grounds that did not exist earlier.
Thus, consistent with the plain words of s.48A(1C) and the need to give effect, as far as possible, to every word of a provision, the Explanatory Memorandum discussed the purpose of s.48A(1C) in terms which addressed the essence of the decision in SZGIZ, whilst the change to s.48A(2)(aa) was said to clarify that all applicants for a visa of a class known as protection visas “are captured for the purposes of section 48A” and to “reinforce” the intention evidenced by the introduction of s.48A(1C). In other words, s.48A(1C) was referred to in terms which suggested that it was the leading provision in that context (see Project Blue Sky at [69]-[71] and AZABF).
Section 48A(1C) is clear and unambiguous. It was inserted in the Act as a response to SZGIZ and was plainly intended to allow those sections in s.48A to which it referred to operate irrespective of the grounds or criteria available or relied upon. It would be superfluous if s.48A(2)(aa) alone had the effect now contended for by the Respondent.
Consistent with the plain language of s.48A(1C) (and the Explanatory Memorandum detailing the policy behind its introduction), the Court in AZABF made it clear that it was the combined effect of the provisions referred to, in particular including s.48A(1C), that meant that, when s.48A(1) was in issue, it was irrelevant whether the grounds or criteria relied on in a further protection visa application were available at the time of the earlier application.
Section 48A(1AA) was not inserted into the Act by the post-SZGIZ Act. It came into effect on 25 September 2014 as part of amendments to s.48A in the Amendment Act which extended the preclusion on a further protection visa application to situations where an application for a protection visa was made on behalf of a non-citizen. However, there is nothing in that Act or in the Explanatory Memorandum thereto that suggests that s.48A(1AA) was intended to prohibit a further application regardless of the criteria or grounds relied on or regardless of whether the criteria existed earlier.
The Explanatory Memorandum to the Migration Legislation Amendment Bill (No. 1) 2014 (which became the Amendment Act) described the purpose of s.48A(1AA) by reference to its terms. It stated at paragraphs 16-18:
16. The purpose of this amendment is to clarify that if an application for a protection visa was made on behalf of a non-citizen while the non-citizen was in the migration zone, and that application was refused, the non-citizen cannot make a further protection visa application, or have a further protection visa application made on his or her behalf, while the non-citizen is in the migration zone. It is irrelevant that the protection application may not have been finally determined. It is also irrelevant that the non-citizen may not have known of, or understood the nature of, the protection visa application because of any mental impairment or because the non-citizen was a minor at the time the protection visa application was made.
17. This amendment addresses a possible interpretation of section 48A of the Act that the restriction on making a further application for a protection visa in that provision would not apply to a person who has been refused a protection visa in respect of which the application was made on their behalf, if the person did not know of, or understand the nature of the application because they either have a mental impairment, or were a minor at the time the application was made.
18. The amendment reflects the policy intention that section 48A of the Act applies to all people who, while in the migration zone made a valid application for a protection visa that was refused, regardless of whether they made the application themselves or had the application made on their behalf, and regardless of whether or not they knew of, or understood the nature of, that application because they were a minor at the time it was made, or because they had a mental impairment.
The Respondent also submitted that, as required under s.48A(1AA), the 2010 application was “an application for a protection visa” as defined in s.48A(2)(aa) which was made when the Applicants were in the migration zone. Further, the delegate had refused to grant protection visas to the Applicants in 2011. It was said not to matter in this context that the Applicants did not know about or understand the nature of the 2010 application (s.48A(1AA)(b)(iii)).
It was contended that the 2017 applications were also made by the Applicants’ father on their behalf, not least because he had signed each application form for them. The Minister did not understand from the Applicants’ pre-hearing submissions that it was in dispute that the Applicants’ father was authorised to act on their behalf in relation to their 2017 applications, even if any or all of the Applicants had, as at the date of the 2017 applications, become competent. It was suggested that the evidence of CTU17 that “while in detention my lawyer told us about a recent court case about children making visa applications in their own name, so I lodged a protection visa application” was consistent with an acknowledgment that the 2017 application had been lodged on her behalf. The 2017 applications were also said to be applications for a protection visa (as described in s.48A(2)(aa)) made when the Applicants were in the migration zone.
On this basis it was said to follow that s.48A(1AA) was engaged with respect to each Applicant and that each Applicants’ protection visa application made on 20 June 2017 was not valid because it was prevented by s.48A(1AA) of the Act.
Consideration of relevance of SZVBN
The relevance of SZVBN was addressed in some detail by the parties, notwithstanding that it was not in dispute that the legal capacity of the Applicants in November 2010 was to be determined in accordance with the general law principles as summarised by Griffiths J at [132].
In SZVBN two children had been included in an initial protection visa application by their mother as members of their mother’s family unit. It was not in dispute that the first protection visa application was formally valid in accordance with reg.2.07 and item 1401 in Schedule 1 to the Regulations. The application was refused. After the children made a further protection visa application an issue arose as to whether that further protection visa application was invalid under s.48A as it stood in August 2014. In this context the children disputed whether they had “made” the first application within s.48A(1) of the Act.
As indicated, the matter was before the Full Court of the Federal Court on appeal from orders made in this court following the determination of a separate question in relation to whether, following Kim, there was a requirement of knowledge of a visa application for s.48A(1) of the Act to apply to a non-citizen.
At [85] Griffiths J described the central issue, as argued on appeal, as:
… whether the Departmental officer fell into jurisdictional error in determining that s 48A applied to prevent the daughter and son from making the second protection visa application in circumstances where they were disputing that their mother had legal authority to include them in the first protection visa application. This dispute was based on the claims of both the daughter and son that they had no knowledge that they had been included in the first protection visa application. The issue of knowledge on the part of a dependent child will generally be tied up with the issue of that child’s legal capacity or competence at the relevant time. Mr Kennett SC (who appeared together with Mr Kaplan for the Minister on the appeal) submitted that it had to be inferred that the statutory regime “assumes the operation of general law principles relating to parental powers and responsibilities” (such as those discussed in Woolley’s case and Secretary, Dept of Health and Community Services v JWB and SMB (Marion’s case) [1992] HCA 15 ; 175 CLR 218 (Marion’s case)). As those cases demonstrate, the issue of parental authority viz a viz a dependent child is inextricably linked to the issue of the child’s emerging legal capacity and competence in his or her own right…
(emphasis added)
His Honour suggested at [86]:
…The focus for present purposes should be on the question of the mother’s legal authority to include her children in Part B of the first protection visa application, having regard to the age and competency of the children and their claim that they had no knowledge of their inclusion in the first protection visa application, and the consequences of these matters for the application of s 48A to their situation. This would require appropriate findings to be made on these matters before an informed determination could be made as to the application of s 48A to the particular circumstances of the daughter and son in this family unit.
Section 48A(1AA) had not been enacted at the time in issue in SZVBN, but the remarks of Griffiths J at [85]-[86] in relation to a child’s legal capacity or competence and knowledge are of relevance and assistance in the present case.
The Amendment Act which introduced s.48A(1AA) had come into effect before the judgment in SZVBN. This was recognised by Griffiths J in his summary of reasons and conclusions at [88]. His Honour stated:
I consider that the primary judge erred in his construction of s 48A. In summary, my reasons and conclusions are as follows:
(1) The text and structure of s 48A as in force at the relevant time direct primary attention to the person who “has made” a previous application for a protection visa, which necessarily raises questions concerning the legal competence of such a person. Reflecting the fact that the provision is written in the active voice, its focus is on the person (and not just on the fact that an application has been made). This is further reinforced by the latter part of s 48A which operates to prevent a person from making a further application for a protection visa in the specified circumstances.
(2) While it is clear that amendments to s 48A made by the Migration Legislation Amendment Act (No.6) 2001 (Cth) reverse the decision of the Full Court in Dranichnikov, there is nothing in either the text or extrinsic materials relating to those amendments to indicate any intention to address any issue concerning the legal competence of a dependent child to “make” an application for a protection visa for the purposes of the bar created by s 48A.
(3) The majority of the Full Court in Soondur held that before it can be determined that a person “has made” a previous application for a protection visa, there must be a factual enquiry as to the age of that person and as to his or her capacity to understand the nature of such an application.
(4) The majority’s construction of this aspect of s 48A in Soondur should be adopted and applied in the circumstances of this appeal. Despite several series of amendments to s 48A after the time of the events which gave rise to Soondur, there is nothing in the text of those amendments or in the accompanying relevant extrinsic materials to indicate any intention to reverse this aspect of the reasoning in Soondur. This position changed with the amendments which were made to both ss 48 and 48A by the Migration Amendment Act 2014 (Cth), following the Full Court’s decision in Kim, but those amendments do not apply to this appeal.
(5) The proper construction of s 48A and its application to the circumstances in this appeal is not assisted by the reasoning of the Full Court in Kim, which was directed to a differently-worded statutory provision with a different scope and history, namely s 48.
(6) Having regard to the proper construction of s 48A, as in force at the relevant time, it will be necessary for the FCCA on the remitter to make appropriate findings concerning the legal competence and understanding of the first and second appellants when the first protection visa application was made.
Soondur had also considered the meaning of the phrase “has made” in s.48A(1) of the Act. It was in that context that Gray J (with whom Goldberg J agreed) had stated in Soondur at [38]:
…Thus, before it can be determined that a person "made" a previous application, there must be a factual enquiry as to the age of that person and as to his or her capacity to understand the nature of such an application.
In SZVBN Griffiths J described the history of legislative amendments of relevance to the question of whether a person had “made” a previous protection visa application within s.48A(1) (at [104]-[121]). In that context his Honour drew a distinction between amendments prior to the time in question and the later insertion of s.48A(1AA). His Honour did state in relation to the Amendment Act that introduced s.48A(1AA):
118. …(iv) Migration Legislation Amendment Act (No.1) 2014: The relevant amendments to s 48A, which are in Sch 1 to this Act, commenced on 25 September 2014. Accordingly, they have no application to either the first or second protection visa applications here.
119. In contrast with the earlier amendments discussed above, it is plain that these amendments were intended to address the issue of a visa applicant’s knowledge or understanding of the nature of a protection visa application, for the purposes of both s 48 and s 48A of the Act. Although no express reference is made in the Explanatory Memorandum to the Full Court’s decision in Kim, it is evident that the amendments were intended to overcome that decision with reference to the operation of s 48 of the Act, and also to preclude the reasoning in Kim being extended to s 48A.
However, unsurprisingly, as SZVBN concerned s.48A, as it stood before the Amendment Act, Griffiths J did not otherwise elaborate on the effect of the Amendment Act.
Pertinently, Griffiths J also summarised (at [132]) the relevant principles concerning legal authority of parents as guardians and the legal capacity of children as discussed in Marion’s Case and summarised in Woolley’s Case (at [97]-[104] per McHugh J and at [152]-[156] per Gummow J) as follows:
(1) in their capacity as guardians of an infant child, parents have the power under the common law to make decisions on behalf of such a child, provided that the child does not have competence to make the decision (Marion’s case at 235–236 per Mason CJ, Dawson, Toohey and Gaudron JJ; at 278 per Brennan J; at 289, 293, 294 per Deane J; at 315 per McHugh J;
(2) where a child lacks legal capacity or authority, the ordinary rules of the common law authorise the parent or guardian of the child to act on the child’s behalf (Marion’s case at 237–238 per Mason CJ, Dawson, Toohey and Gaudron JJ); and
(3) as parental authority diminishes, so the child’s legal competence grows and a parent’s authority ends when the child has sufficient intellectual and emotional maturity to make an informed decision (Marion’s case at 237–239 per Mason CJ, Dawson, Toohey and Gaudron JJ; at 293–294 per Deane J; at 316 per McHugh J).
As the Respondent pointed out, after adopting the approach taken in Soondur to the issue of whether a non-citizen “has made” a protection visa application in s.48A(1), Griffiths J described the nature of the requisite factual inquiry to be conducted (by this court) in relation to s.48A(1) at [141] of his reasons as set out at [209] above.
In SZVBN, Robertson J agreed with the reasons of Griffiths J. In relation to the issue of statutory construction before the Court, Robertson J pointed to the use of the words “has made” in s.48A(1) (at [11]-[13]) and to the fact that the construction of s.48A adopted by the majority in Soondur was unaffected by the legislative amendments “up to 25 September 2014” (which was when the Amendment Act of 2014 which introduced s.48A(1AA) came into force).
Wigney J agreed with Griffiths J and Robertson J and also made observations which focused on the use of the expression “has made” in s.48A(1) of the Act. Relevantly, his Honour rejected the contention of the Minister that the Act (as it then stood) did not distinguish between a visa application made by a non-citizen and a visa application made on behalf of a non-citizen as follows:
[275] I do not agree. In my opinion, the considerations referred to by Robertson J militate against the construction favoured by the Minister. It is one thing to say that a protection visa application has been validly made by a parent on behalf of a child; it is another thing to say that in those circumstances the child “has made” the protection visa application. I am unable to see anything in the text, context, purpose or legislative history of s 48A to support the proposition that the meaning of the expression “has made” should be extended such that it encompasses the making of a visa application on behalf of a child or other person who lacks competence or capacity.
[276] Like Griffiths J, I also see force in the reasoning of Gray J (with whom Goldberg relevantly agreed) in Soondur at [35]-[38]. That reasoning would tend to suggest that a protection visa application made by a parent on behalf of their child who lacks competence or capacity is not made by the child for the purposes of s 48A. At the very least, before a finding can be made that a person “made” a previous application for the purposes of s 48A, “there must be a factual inquiry as to the age of that person and as to his or her capacity to understand the nature of such an application”: Soondur at [39].
In SZVBN the majority saw a need for this court, not the delegate, to make findings of fact to determine whether a non-citizen had “made” a protection visa application within s.48A(1) of the Act where the validity of a further protection visa application was in issue. It was in that context that Griffiths J referred to the relevance of the reasoning in Soondur, in particular as to the capacity of a minor to understand the nature of such an application.
As the Respondent submitted, when the judgments of the majority in SZVBN are read together (and see in particular Wigney J at [275]), it is clear that the fact that an earlier protection visa application was made “on behalf of” a child by his or her parent does not in itself mean that the child “has made” such application for the purposes of s.48A(1) as in force prior to the commencement of the Amendment Act. I accept that SZVBN does not detract from the proposition that in circumstances where it cannot be said that a non-adult “has made” a protection visa application, the application may nonetheless have been made “on behalf of” the child within s.48A(1AA).
Griffiths J did observe that it was “plain” that the Amendment Act amendments which introduced s.48A(1AA) were intended to address the issue of a visa applicant’s knowledge or understanding of the nature of a protection visa application and, relevantly, to preclude the reasoning in Kim being applied to s.48A of the Act. These remarks appear to relate to s.48A(1AA)(b), but it was not necessary for the Court in SZVBN to determine the construction of s.48A(1AA) or the interaction between that provision and general law principles concerning the legal authority of parents and the capacity of children.
SZVBN is not “directly” in point. It does not, in itself, warrant the grant of relief on any basis contended for by the Applicants (in particular based on the absence of a factual inquiry by the delegate into the legal capacity of the Applicants). However SZVBN does address factors of relevance where an inquiry into legal capacity is necessary because an applicant disputes that a protection visa application was made on his or her behalf.
Insofar as it was initially contended for by the Respondent that Griffiths J appeared to suggest at [88(4)] that the introduction of s.48A(1AA) had reversed the reasoning in Soondur in relation to the need for a factual enquiry as to the age and capacity of the non-citizen to understand the nature of a protection visa application made on his or her behalf, his Honour did not elaborate on his observations in that respect (which also referred to Kim).
Moreover, the Respondent’s submissions ultimately proceeded on the basis that it was necessary for there to be a factual inquiry in the context of determining whether the 2010 application was made “on behalf of” each of the Applicants within s.48A(1AA) as this was disputed.
Consideration of legal capacity
Notwithstanding the pleading in particular (c) to ground 1, the Applicants’ ultimate contention was that s.48A(1AA) was not enlivened because they were competent in 2010 in accordance with general law principles, but had no knowledge of the 2010 application so that such application was not made on their behalf.
The Respondent did submit generally that given the terms of s.48A(1AA)(b)(iii), the fact that the Applicants were unaware of the 2010 application or did not understand its nature was “immaterial”. However the Respondent’s approach to s.48A(1AA)(a) was that, in accordance with the principles of parental authority considered in Marion’s Case and Re Woolley, as the Applicants had not established that they had legal capacity in 2010 their father had legal authority to make the 2010 application “on behalf of” each of them and that he had done so notwithstanding their lack of knowledge of the 2010 application.
As all of the parties accepted the general law principles were relevant in this respect, I have considered this issue on the basis of the principles considered in Marion’s Case and Re Woolley, as adverted to by Griffiths J in SZVBN at [132].
I do not accept the Applicants’ submission (unsupported by authority) that as 10, 9 and 6 year old children attending school in 2010 they should be presumed to have legal capacity in relation to the 2010 application in the absence of evidence to the contrary. Authorities cited by both parties make it clear that the understanding and intelligence of the “particular” child in question is to be considered in determining whether each person has the requisite legal capacity in relation to the particular situation or matter in issue.
While Re Woolley concerned a different sort of immigration decision (the capacity to request removal from Australia), in considering four children who were aged 15, 13, 11 and 7 at the time of the hearing (Re Woolley at [35]), the High Court made the point that the understanding and intelligence of the particular child was to be considered. As Gleeson CJ stated at [30]:
…not all persons under the age of 18 would lack the legal capacity to make an effective request for removal. In Gillick v West Norfolk AHA [1986] AC 112 at 188 Lord Scarman pointed out that, subject to any statutory provision, "a minor's capacity to make his or her own decision depends upon the minor having sufficient understanding and intelligence to make the decision and is not to be determined by reference to any judicially fixed age limit." That principle was applied by this Court in Marion's Case. Some children would have the legal capacity to make (independently of their parents) a request for removal from Australia, and others would not...
(emphasis added)
Similarly, McHugh J made the point in Re Woolley at [102] that:
…Legal capacity is usually determined on the basis of the ability of the individual to understand the nature and consequences of a particular situation. Children are presumed to be incompetent at birth and gradually to acquire legal competence for various purposes at different stages of their development until they reach the age of majority (18), in which case they are presumed to have full legal capacity. The capacity of the child varies according to the gravity of the particular matter and the maturity and understanding of that child.
(emphasis added)
In Re Woolley, Gummow J cited Marion’s Case as follows (at [154]):
What is meant here by the expression "lacks capacity"? In Marion's Case, it was held that the capacity of a child who is not yet aged 18 years to give informed consent to acts which require consent as a condition of their legality does not depend upon any fixed age rule; capacity turns upon the attainment of the child of sufficient understanding and intelligence to understand fully what is proposed. In this way, pending the attainment of legal majority, the legal capacity of a particular child will vary according to the gravity of the particular matter and the maturity and understanding of that child. These principles are to be applied to the making of requests for removal under s 198(1).
(footnote omitted)(emphasis added)
Further, as Callinan J stated in Re Woolley at [266]:
The issue of a child's capacity to act, even if it were relevant, would only be determinable on a case by case basis…
(emphasis added)
As Griffiths J pointed out in SZVBN at [132]:
…as parental authority diminishes, so the child’s legal competence grows and a parent’s authority ends when the child has sufficient intellectual and emotional maturity to make an informed decision…
(emphasis added)
Contrary to the Applicants’ contention, the fact that cases in the migration context, such as Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293, related to the capacity of infant children does not, in itself, mean that children who are no longer infants (such as those of school age), necessarily have capacity in relation to migration decisions. Re Woolley makes that clear. The capacity of a child in relation to a decision to make a protection visa application depends on the maturity and understanding of the particular child in relation to what is proposed and his or her ability to make an informed decision. I note that as the Applicants did not have the assistance of a migration agent in 2010 (and did not make the 2010 application of their own behalf) the issue considered in Jaffari (see SZVBN at [133]) does not arise.
The difficulty that faces the Applicants in this case is that it was for them to put evidence before the court in support of their contention that the 2010 application was not made on their behalf because they had legal capacity at that time but had no knowledge of the 2010 application and had not authorised their father to make that application. They have not done so, apart from evidence addressing the question of their knowledge of the 2010 application, their ages and the fact they were each at school in 2010.
The Applicants were on notice of the Respondent’s contention that the validity of the 2017 applications was to be determined by the court (and of the approach taken in that respect in SZVBN) and accepted that general law notions of parental responsibility were relevant in determining whether the 2010 application was made on their behalf. They did not seek to put on any further evidence in this respect, but relied on material before the court. Hence I have considered the issue of the legal capacity of the Applicants on the basis of such material.
There is no evidence addressing the maturity or ability of any of the Applicants in 2010 to understand the nature and consequences of a significant matter such as a protection visa application or that is otherwise such as to establish their legal capacity or competence on 19 November 2010 in relation to an immigration related decision.
I do not find persuasive the contention that the mere fact of the evidence of the Applicants’ ages in 2010 of 10, 9 and 6 and their enrolment at school establishes a presumption (in the absence of evidence to the contrary) of sufficient intellectual and emotional maturity on the part of each child to make an informed choice in relation to making or authorising the making of a protection visa application. I note that on this approach every school aged child would be presumed competent in relation to migration decisions in the absence of evidence to the contrary. More pertinently, such an approach is not consistent with the need to consider the maturity and understanding of the particular child and the particular matter in issue.
On the limited evidence before the court I am not satisfied that it has been established by the Applicants that any of them had the legal capacity to make his or her own decision about an application for a protection visa as at 19 November 2010. Such an application is a matter of some significance. It has not been established that any of the Applicants had sufficient intellectual and emotional maturity to make an informed decision in that respect.
Hence the Applicants’ father had authority under the common law to make immigration-related decisions on their behalf, including making a protection visa application on their “behalf”, in November 2010. In these circumstances, contrary to the Applicants’ contention, the fact that they did not know about the 2010 application does not mean that that application was not made on behalf of each Applicant. I accept on the affidavit evidence of CTU17 and her parents that none of the Applicants had knowledge of the 2010 application. Such lack of knowledge would be relevant if they had legal competence in 2010, but their lack of knowledge is not in itself determinative of whether the 2010 application was made on behalf of the Applicants (and see SZVBN at [85]-[86]).
Whether the father in fact made the 2010 application “on behalf of” each of the Applicants is an objective question. The 2010 application met the requirements of s.46 of the Act and the Regulations made thereunder (see reg.2.07 and item 1401 in Schedule 1 to the Regulations. The father signed Part D of each Applicant’s application form and all parts of each form. He included the Applicants as members of his family unit. In his covering letter to the Department, he stated that he had “applied for [a] protection [v]isa”. As the Respondent submitted, given that the father had included his children as members of his family unit, it can be inferred that he considered himself as having applied for a protection visa on their behalf. Whether he “thought that [he] had to include [his] whole family”, as he deposed in his affidavit of 28 July 2017, does not detract from the fact that he acted and applied for visas on behalf of each of the Applicants in November 2010.
On the evidence before the court I am satisfied that as a matter of fact the Applicants’ father did act on behalf of each of the Applicants in making the 2010 application.
On this basis, an application for a protection visa was made on behalf of each Applicant on 19 November 2010 while each Applicant was in the migration zone. That is so whether or not s.48A(1AA)(b) modifies the application of s.48A(1AA)(a). Hence it is not necessary for present purposes to resolve that issue.
In addition, I accept that for the reasons given by the Respondent (see [98]-[103] above), the application made on behalf of each Applicant on 19 November 2010 was an application for a protection visa as described in s.48A(1AA)(a), being an application for a visa of a class formerly provided for by s.36(1) (see s.48A(2)(aa)). As the Respondent pointed out, s.36(1) was not amended between 19 November 2010 and its repeal and the 2010 application was within the express words of inclusion in s.48A(2)(aa) as it stood in June 2017 (as an “application for a visa of a class formerly provided for by subsection 36(1)”). The requirements of s.48A(1AA)(a) are met.
In relation to the application of s.48A(1AA)(b), the delegate refused to grant protection visas to the Applicants. It is not in dispute that in this context it does not matter whether the Applicants did not know about, or understand the nature of, their applications because they were minors (see s.48A(1AA)(b)(iii)).
It is also not disputed that, as the Respondent contended, the visa applications of 20 June 2017 (the 2017 applications) were also made by the Applicants’ father on their behalf, even if they were by then legally competent.
Were it not for the SZGIZ issue discussed above, these findings would mean that s.48A(1AA) applied to render the Applicants’ 2017 protection visa applications invalid.
However the Applicants have established one of the grounds on which they relied, thus entitling them to relief. I will order the parties to bring in short minutes of orders reflecting these reasons or, if they are unable to agree, to file written submissions in relation to the form of orders.
I certify that the preceding two hundred and sixty-one (261) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 28 February 2019
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