FEL17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 4
Federal Circuit and Family Court of Australia
(DIVISION 2)
FEL17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 4
File number(s): SYG 3677 of 2017 Judgment of: JUDGE LAING Date of judgment: 13 January 2023 Catchwords: MIGRATION – application for judicial review of a determination that a protection visa application was invalid due to s 48A of Migration Act 1958 (Cth) – where the applicant had previously been refused a protection visa – where the Tribunal’s affirmation of that refusal was substituted for a decision to grant a different visa under s 417 of Migration Act 1958 (Cth) – application dismissed. Legislation: Migration Act 1958 (Cth) ss 48A, 48A(1), 65, 415(2)(d), 415(3), 417 Cases cited: Al Tekriti v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 772; (2004) 138 FCR 60
Chou v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 130; 286 FCR 459
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217
Division: Division 2 General Federal Law Number of paragraphs: 29 Date of hearing: 7 November 2022 Place: Sydney Solicitor for the Applicant Mr D. Godwin (of Counsel) Solicitor for the Respondent Mr J. Hutton (Australian Government Solicitor) ORDERS
SYG 3677 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FEL17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
13 JANUARY 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING
INTRODUCTION
Before the Court is an application for judicial review of a decision of a delegate (Delegate) of the respondent (Minister) dated 25 October 2017. The Delegate found that a Protection (Class XA) (Subclass 866) visa (protection visa) application that had been made by the applicant on 12 October 2017 was invalid on the basis that the applicant had previously lodged a protection visa application that had been refused.
background
The applicant is a Coptic Christian from Egypt. He made his first application for a protection visa on 24 December 2013.
On 23 July 2014, a delegate of the Minister refused the application. On 11 September 2015, the Administrative Appeals Tribunal (Tribunal) affirmed the delegate’s decision.
On 12 September 2017, the Assistant Minister granted the applicant a Visitor (Subclass 600) visa for 3 months with a no further stay condition (Condition 8503) under s 417 of the Migration Act 1958 (Cth) (Act).
On 12 October 2017, the applicant made a second application for a protection visa.
On 25 October 2017, the Delegate sent the applicant a letter notifying him that his application was considered to be invalid because it was barred by the operation of s 48A of the Act.
relevant legislation
Section 48A(1) of the Act relevantly provides:
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…
Section 415 of the Act provides:
415 Tribunal powers on review of Part 7-reviewable decisions
(1)The Tribunal may, for the purposes of the review of a Part 7-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
(2) The Tribunal may:
(a)affirm the decision; or
(b)vary the decision; or
(c)if the decision relates to a prescribed matter—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d) set the decision aside and substitute a new decision; or
(e) if the applicant fails to appear—exercise a power under section 426A in relation to the dismissal or reinstatement of an application.
(3) If the Tribunal:
(a) varies the decision; or
(b) sets aside the decision and substitutes a new decision;
the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.
(4)To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.
Section 417 relevantly provides:
417 Minister may substitute more favourable decision
(1)If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
…
the decision UNDER REVIEW
It is convenient to set out the reasons given in the decision under review fulsomely, as they are relatively short in length:
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.
The Minister has the power under section 48B of the Migration Act to allow a person to apply again for a protection visa if he decides it is in the public interest to do so. The Minister is under no obligation to consider exercising this power.
Lodging another application
You cannot make another valid visa application while in Australia, unless the Minister personally decides that it is in the public interest to allow you to do so.
Review rights
There is no right of merits review of the assessment that an application is invalid.
proceedings before this court
The applicant commenced the proceedings before this Court by an application made on 27 November 2017. The applicant appears to have been unrepresented at that time. His stated grounds of review contended that his application for a second protection visa was valid because he was on a substantive visa granted by the Minister at the time that the application was made. The grounds also contended that the Department should have considered his new circumstances and evidence.
The applicant appears to have subsequently engaged Mr Godwin of Counsel. Mr Godwin elaborated upon the basis by which the second visa application was contended to be valid.
Mr Godwin contended that the second visa application was valid because the s 417 decision had effectively overturned the visa refusal for the purposes of s 48A of the Act. Mr Godwin observed that the s 417 decision had “substitute[d]” a “more favourable decision” for the Tribunal’s decision to affirm the visa refusal. He submitted that it was the decision of the Tribunal, as substituted, which became the operative decision and not that of the Delegate refusing the visa.
Mr Godwin relied upon Al Tekriti v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 772; (2004) 138 FCR 60 (Al Tekriti) at [28]-[30] (per Mansfield J):
28 There is nothing in s 48, or in the Act generally, which to my mind indicates a legislative policy that a refusal of a visa which has been set aside by the AAT or by the Refugee Review Tribunal (or by the Migration Review Tribunal) should have effect for the purposes of s 48 of the Act. Indeed, I consider the legislative policy discernible from the provisions to which I have referred is to the contrary. It is appropriate to have regard to s 48 and s 48A together for that purpose as the relevant wording of s 48(1)(b)(i) and s 48A(1)(a) and (b) is to the same effect. Counsel for the respondent in argument drew the parallel between those provisions. Whichever of those sections is addressed, whilst the clear policy is the evidence of a proliferation of visa applications by the expression of the limited circumstances in which more than one visa application may be brought, the context also is that visa applications should be carefully addressed by the respondent or her delegate (subdiv AB of Div 3 of Pt 2) and with rights of review by the AAT in certain refined circumstances, or the Migration Review Tribunal under Pt 5 for applications for visas other than protection visas. Sections 349 and 415 respectively in relation to the Migration Review Tribunal and the Refugee Review Tribunal set out their powers. Those Tribunals, like the AAT, stand in the shoes of the primary decision-maker, and may vary or set aside the initial decision and substitute a new decision. Sections 349(3) and 415(3) provide, in such a case, that the decision as varied or substituted is taken to be a decision of the respondent. The wording of s 349(3) and 415(3) is significant. It affirms the primacy of the review decision, once it has been made. If it sets aside the decision of a delegate of the respondent and substitutes a new decision, the new decision in effect becomes the decision of the respondent. It would appear to do violence to the plain language of those provisions to treat a decision of a delegate of the respondent which has been set aside by a tribunal under Pt 5 or Pt 7 as a decision refusing the visa. The provisions do not contemplate two inconsistent decisions of the respondent (by a delegate and by a tribunal) both operating, or that s 48 and s 48A should give primacy to the decision which has been set aside. To give s 48 and s 48A that meaning would subvert the legislative policy evidenced by the scheme of review under the Act. Moreover, there is no apparent reason why the legislature would intend ss 48 and 48A to operate when the delegate’s decision has been set aside by the reviewing tribunal.
29 I do not accept the argument of counsel for the respondent that the parenthetical words ‘whether or not the application has been finally determined’ in s 48(1)(b)(i) and also in s 48A(1)(a) and (b) apply to the present circumstances. Section 5(9) defines when an application for a visa is finally determined. It provides:
‘For the purposes of this Act, an application under this Act is finally determined when either:
(a) a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7; or
(b) a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.’
30 The fact that s 48(1)(b)(i) operates whether or not the application for a visa has been finally determined, that is whether or not the time for any review available under Pt 5 or Pt 7 has expired, or if an application for review has been made whether or not the application for review has been determined, does not mean that a decision to refuse a visa which has been set aside on review should nevertheless be given effect to. The parenthesised words must be given effect: see e.g. per McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 153 ALR 490 at 510. But the purpose of those words is clear enough: they mean that s 48 would prevent the application for a further visa (other than a visa in the prescribed classes) whilst the refusal decision had effect. It would have effect once it was made, even though there may still have been time to seek review of it under Pt 5 or Pt 7 or even though there may be an unresolved review application under Pt 5 or Pt 7. The legislative policy is to preclude any further application for a visa (other than a visa in the prescribed classes) in such circumstances. There is sound reason why that should be so: there may be no application for review, or the decision under review may be affirmed. The parenthesised words cover what might otherwise be an hiatus in the legislative scheme.
Mr Godwin also relied upon Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 (Plaintiff M174). In that case, within the context of considering the role of the Immigration Assessment Authority on review and the effect upon this of any invalidity in the delegate’s decision, it was stated (per Gageler, Keane and Nettle JJ):
17.Notwithstanding the inability of the Authority to set aside a fast track reviewable decision and to substitute its own decision, the Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority under s 473CC(1) is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met. The powers conferred on the Authority by s 473CC(2) then enable the Authority to make orders appropriate to give effect to the outcome of its own determination of the merits. If the Authority is not satisfied that the criteria for the grant of the visa have been met, the appropriate order for the Authority to make is to affirm the decision under review. If the Authority is so satisfied, and the Authority has found no other statutory impediment to the grant of the visa, the appropriate order for the Authority to make is to remit the decision for reconsideration by the Minister in accordance with such permissible directions or recommendations as the Authority considers are appropriate to give effect to the Authority's determination.
18. The effect of the Authority affirming the fast track reviewable decision under review is that it is no longer solely the decision of the Minister or delegate to refuse to grant the visa, but rather the decision as affirmed by the Authority, that constitutes the determination of the fast track applicant's valid application for a protection visa. That effect of the Authority affirming the fast track reviewable decision under review bears on the nature of a fast track reviewable decision that is capable of being the subject of that review in a manner which will be explored later in these reasons.
...
69.The conclusion, already stated, that a fast track reviewable decision is nothing more than a decision to refuse to grant a protection visa to a fast track applicant that is made in fact means that the plaintiff's challenge to the delegate's decision must fail unless the plaintiff's challenge to the Authority's decision can succeed on an independent ground.
70.The reason is not that review by the Authority in some way "cures" a defect of jurisdiction in the decision of the Minister or delegate that is under review. The reason is that, once a fast track reviewable decision is affirmed by the Authority, it is the order of the Authority operating by force of s 473CC(2)(a) of the Act to affirm the decision of the Minister or delegate that alone gives the decision of the Minister or delegate legal operation. Once affirmed by the Authority, the decision of the Minister or delegate has no independent continuing legal operation by force of s 65 of the Act, whether actual or purported. For that reason, any defect of jurisdiction in the decision of the Minister or delegate can simply have no bearing on the legal position of the referred applicant.
Reliance was also placed by Mr Godwin upon [92], in which Edelman J stated:
92.The most fundamental question in this special case, question two, concerns the construction of legislation involving two tiers of decision making, where the effect of the legislation is to constrain the ability of a court exercising federal jurisdiction to enforce the limits of the decision maker's authority at the first tier. The context of that question is a "fast track reviewable decision" by a Minister or delegate, which is subject to a mandatory, de novo review by the Immigration Assessment Authority ("the Authority") under Pt 7AA of the Migration Act 1958 (Cth). When, as in this case, the Authority affirms the Minister or delegate's decision to refuse an applicant's visa application, that affirmation gives legal effect to the refusal. However, although the affirmation becomes the sole source of legal effect for the refusal, the Minister or delegate's decision and reasons must be considered as part of the Authority's review. Question two concerns the circumstance in which, as is alleged, a Minister or delegate's jurisdictional error contributes to the reasoning process of the Authority.
Reliance was additionally placed upon the decision in Chou v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 130; 286 FCR 459 (Chou). In that case, the effect of an erroneous Tribunal decision affirming cancellation of a visa was considered in respect of a consequential cancellation decision that had been made by the Tribunal. At [142]-[143], Griffiths and Abraham JJ reasoned:
142.The Minister contended that the cancellation of Ms Chou’s visa by the delegate, which underpinned the decision in relation to Sebastian, remained in force unless and until set aside by the AAT. Therefore the AAT’s second decision concerning Sebastian should not be quashed if the AAT’s first decision concerning Ms Chou was set aside. This submission is not to be accepted.
143.As the appellants contended in their supplementary submissions in reply dated 29 June 2021, from 8 February 2018 (when the AAT affirmed the delegate’s cancellation decision in respect of Ms Chou), the delegate’s decision had no independent continuing operation, nor did the AAT’s order affirming that decision give the delegate’s decision continuing legal operation (see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [70] per Gageler, Keane and Nettle JJ). Contrary to the Minister’s submission, the AAT’s second decision was not “underpinned” by the delegate’s earlier decision to cancel Ms Chou’s visa. The true position is that the AAT’s second decision depended for its validity upon the validity of its first decision (which affirmed the cancellation of Ms Chou’s visa). It necessarily follows that because that first decision was affected by jurisdictional error and is invalid (contrary to the primary judge’s conclusion), the AAT’s second decision is affected by the same error and must be set aside as invalid. Ground 5 is accordingly upheld.
Mr Godwin submitted that when the Tribunal affirmed the Delegate’s decision, the Tribunal’s decision became the operative decision, in accordance with Plaintiff M174 and Chou. The s 417 decision then overtook the Tribunal’s decision once substituted, with the result that there was no operative refusal of the protection visa application for the purposes of s 48A of the Act.
Mr Godwin acknowledged, however, that the above authorities occurred in different contexts to the present case, and were therefore not directly on point. Neither party was able to locate any authority squarely dealing with the issue before the Court; namely, whether a changed outcome under Ministerial Intervention meant that s 48A had no application.
Ultimately, on balance, I am not persuaded that this conclusion ought to be reached in the circumstances of this case.
In the present case, the Delegate had refused the applicant’s protection visa application under s 65 of the Act. The requirements of s 65 of the Act were binary. That provision required the Delegate to grant the protection visa if the relevant criteria were met, or to refuse to grant the visa if they were not. As the visa application was refused, s 48A(1) was enlivened. This was so “whether or not the application [had] been finally determined”. The application of s 48A was unchanged by the Tribunal’s decision, which affirmed the Delegate’s decision.
It is clear from Al Tekriti that if the Tribunal had set aside the Delegate’s decision under s 415(2)(d) of the Act, then the Delegate’s refusal and the effect of this upon s 48A of the Act would have been displaced. This is confirmed by s 415(3) of the Act.
However, it does not follow that the displacement of the Tribunal’s decision under s 417 of the Act was necessarily of the same effect.
It may be accepted that the Assistant Minister’s decision in the present case “substitute[d] for a decision of the Tribunal under section 415” a different and “more favourable” decision to that of the Tribunal. However, that did not render the Assistant Minister’s decision of comparable effect to a decision under s 415(2)(d) of the Act. The Assistant Minister did not purport to set aside (or affirm) the Delegate’s decision. Instead, a decision was made by the Assistant Minister under s 417 of the Act to substitute for the Tribunal’s decision a new decision to grant the applicant an entirely different category of visa. This was beyond the Tribunal’s powers under s 415.
That is not to say that, in an appropriate case, an exercise of power under s 417 of the Act could not effect the setting aside of the Delegate’s decision in a manner similar to s 415(2)(d). Such a decision could, conceivably, be made under s 417 of the Act as a substituted “decision that is more favourable to the applicant”. Section 417 is a broad power, capable of varying expression that may include, but is not limited to, options available to the Tribunal under s 415.
However, on balance, I am not persuaded that this is what occurred in the present case. In the present case, the exercise of power under s 417 was not directed towards the setting aside of the Delegate’s decision. In effect, its exercise maintained refusal of the applicant’s protection visa application. The Assistant Minister did not grant the applicant the protection visa for which he had applied. Instead, the Assistant Minister granted the applicant a different and far more limited class of visa that allowed him to remain in Australia for a period of 3 months after his protection visa application had been refused. I do not consider that the intended effect of this was to supplant or otherwise set aside refusal of the applicant’s protection visa application for the purposes of s 48A of the Act. Nor am I persuaded that this effect necessarily occurred on account of the substitution of the Tribunal’s decision under s 417.
It follows that the refusal of the applicant’s first protection visa application remained in place for the purposes of s 48A of the Act. The Delegate therefore correctly determined that the applicant’s second protection visa application was invalid.
CONCLUSION
For the above reasons, the application must be dismissed.
I will hear from the parties in relation to costs.
30 I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Laing.
Associate:
Dated: 13 January 2023
330
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