SZQCH v Minister for Immigration
[2011] FMCA 641
•23 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQCH v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 641 |
| MIGRATION – Protection visa – where applicant had previously applied as part of husband’s family unit – whether application in substance include her own claims – whether the second application was subject to prohibition under s.48A Migration Act 1958 – whether validity to be considered on basis of law at time of first or second application. |
| Migration Act 1958 (Cth), ss.48A, 48B Migration Legislation Amendment Act (No.6) 2001 |
| Dranichnikov v Minister for Immigration [2001] 109 FCR 397 Soondur v Minister for Immigration [2002] 12 FCR 578 Sorby and Anor v Commonwealth of Australia and Ors (1983) ALR 237 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Grant [1950] 81 CLR 27 SZGME v Minister for Immigration [2008] 247 ALR 467 SZMIA v Minister for Immigration [2008] FCA 1909 |
| Applicant: | SZQCH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 597 of 2011 |
| Judgment of: | Raphael FM |
| Hearing date: | 15 August 2011 |
| Date of Last Submission: | 15 August 2011 |
| Delivered at: | Sydney |
| Delivered on: | 23 August 2011 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the Respondents: | Mr J Potts |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,850.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 597 of 2011
| SZQCH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of China who arrived in Australia with her husband on a visitor’s visa in April 1998. On 5 May 1998 they applied for protection visas. They did this with the aid of a migration agent but the applicant told me today he did not really explain the process to them. In the event the principal application was made by the husband and the wife, who is today’s current applicant, stated on Form B, that she was a person who did not have her own claims to be a refugee. She therefore completed Form D as a member of the family unit. The application form is at [CB 111] Supplementary Court Book, stating:
“This part is for a member of the family unit who does NOT have their own claims to be a refugee but is included in the application.”
If you DO have your own claims to be a refugee complete Part C instead.”
The grounds upon which the principal applicant claimed to be a person to whom Australia owed protection obligations arose out of the Chinese one child policy. It is best articulated in a letter written on 1 May 1998 by both the husband and wife [CB 84 – 86] Supplementary Court Book. The letter commences:
“I, ZGS, born on 14th March 1969 in ZP, China, a Chinese citizen, came to Australia together with my wife CXY, to seek for refugee status and arrived in Adelaide, South Australia on 26 April by Indonesian Airline. I put the following statement to further support our application for protection Visa (Sub-Class 866).”
The letter continues with observations about the one child policy as it applied to the applicants and then states:
“In my family I am the only child of my parents. If I had brothers or sisters both my parents and I would have never minded that we had only one child. But because I am the only son in the family traditionally and reasonably I can have more than one child. So both my wife and I refused to have the sterilization operation. Then the local Government forced me to pay the penalty of $5,000.00. I agreed but then they found I ran a business then they doubled the penalty. I still agreed because two generations in my family want me to have a second child. After I paid them I asked the local Government officials weather I can have a second child and when we are allowed to. Unexpectedly the officials changed there face asking me who said I could have a second child after payment. They said that they find us this time because we did not have the operation in time and we still had to have the operation within six months. I knew I was taken in and there was no place I could reason with them. After I discussed with my wife and parents we decided to leave our home town to go to another province to survive because if we stayed in my home town we could not escape from the operation which is actually a sort of persecution.”
The letter concludes with an explanation of how the applicants left China.
Neither the husband nor the wife appeared at the first Tribunal hearing so the matter was considered upon the papers. In its Findings and Reasons for decision the Tribunal stated:
“[i]f I were to accept the applicant’s evidence, the substance of his claims is that he and his wife will be punished because they have refused to comply with requirements that they undergo sterilisation in accordance with China’s family planning laws as the High Court observed in Applicant A, referred to above, per Brennan CJ at 334-5 and McHugh J at 354, punishment of a non-discriminatory kind for contravention of a law of general application will not ordinarily constitute persecution and the only thing that sets the applicant and his wife apart from the rest of the Chinese community is their failure to comply with the law. This is in itself, in accordance with the decision of the High Court in Applicant A, does not make them members of a ‘particular social group’ for the purposes of the Convention none of the other Convention reasons would appear to be relevant. Similarly, the mere fact that the Applicant and his wife may be punished for having departed China illegally is likewise the consequence of the enforcement of a law of general application. There is nothing in the evidence before me to suggest that the Applicant and his wife will be treated differently from any other offenders, or punished more harshly, for any Convention reason. In particular there is nothing in the evidence before me to suggest that the Applicant and his wife have in the past been, or will in the future be, imputed with a political opinion by reason of their failure to comply with the requirements of the family planning laws or by reason of their illegal departure from China or that they will be treated differently, or punished more harshly, for these breaches of China’s laws by reason of any such imputed political opinion.” [CB 35 – 36] Supplementary Court Book
Notwithstanding the refusal of protection visas these applicants remain in the country. In the intervening years the current applicant has become a devout Christian. In January 2009 a migration agent wrote to the Minister for Immigration requesting that he consider exercising his discretion under s.48B of the Migration Act 1958 (the “Act”) allowing her (and her husband) to make a further application notwithstanding the bar raised by s.48A. On 11 June 2010 her migration agent received a response [CB 70]:
“Dear Mr Chan
Thank you for your letter of 28 January 2009 to the Minister for Immigration and Multicultural Affairs, Senator the Hon Chris Evans, requesting that he consider exercising his ministerial discretion under section 48B/s417 of the Migration Act 1958 in the case of Mr GZ and Ms ZC.
Under section 48B of the Act, the Minister may allow a person to make a further application for a protection visa if he considers it is in the public interest to do so.
Advice provided by the Special Counsel (Australian Government Solicitor) on the interpretation of subsection 48 A(2) states that in cases when an applicant applied for a protection visa before 23 June 2001 as a member of family unit without any claims and refused, this applicant is not barred by section 48A.
Your client, Ms C, was included in the application of her partner for a Protection Visa. The application was lodged on 5 May 1998. Ms C did not present any claims of her own as she was included as a dependent applicant. As a consequence, Ms C has no section 48A bar which means the section 48B power is not available. However, given there is no section 48A bar Ms C is now able to lodge a new protection visa application.
If you have any enquiries please do not hesitate to contact Ms Rahmi Khanna, Assistant Manager, NSW Ministerial Intervention Unit or Mrs Rebecca Mavromichalis, Manager, NSW Ministerial Intervention Unit on 131 881.”
The applicant applied and her application was considered by a delegate who refused it on the grounds that she did not have a genuine fear of harm and that there was no real chance of persecution occurring due to her Christian activities, nor was he satisfied that she would undergo forced sterilisation if she were returned to China. The applicant applied for review of that decision from the Refugee Review Tribunal who having considered the papers wrote to her on 17 February 2011:
“Dear Ms C
I am writing about the application for review made by you in relation to a decision to refuse to grant a Protection (Class XA) visa.
The Tribunal wrote to you on 20 January 2011, inviting you to a hearing on 3 March 2011. The Tribunal notes that we have not yet received a written response to that invitation.
Since writing to you, it has come to the Tribunal’s attention that your application t the Department, submitted on 17 June 2010, may not have been valid, notwithstanding the advice contained in a letter from the Department dated 11 June 2010.
Because your visa application was made on 17 June 2010, the Tribunal is of the opinion that s.48A of the Migration Act may apply to you. If that section does apply to you, in the absence of any written notice by the Minister (emphasis added) under s.48B of the Act determining that s.48A does not apply to prevent an application for a protection visa being made by you, you would be precluded from making any further protection visa application.
The definition of ‘application for a protection visa’ in s.48A(2)(ab) includes “an application for a visa, a criterion for which is that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen in Australia: (i) to whom Australia has protection obligations under the Refugees Convention as amended by the Protocol; and (ii) who holds a protection visa” (emphasis added)
Section 48A(2)(ab) applies to protection visa applications made on or after 1 October 2001. It was further amended on 1 July 2009 to make clear that further applications by a family member came within s.48A. Thus a second application for a protection visa would have to have been made before 1 October 2001 to not be s.48A barred. Therefore, your June 2010 application for a protection visa would not have been valid unless the Minister had made a s.48B determination. There is nothing in the Department’s file to indicate that such a determination was made, and the letter dated 11 June 2010 indicates that the Department was of the view that “the section 48B power (was) not available” which may suggest that no such determination was made.” [CB 143]
The applicant attended a hearing before the Tribunal which in its Grounds and Reasons said at [[10] CB 168]:
“[10]A decision to refuse to grant a protection visa is an RRT-reviewable decision: s.411(1)(c). Section 415(1) of the Act provides that the Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision. It follows that, if a protection visa application is not valid the Tribunal can consider the review application, but cannot make a decision on the merits of the visa application: MIMA v Li; MIMA v Kundu (2000) 103 FCR 486; see also SZGME v MIAC (2008) 168 FCR 487 per Black CJ and Allsop J at [30].”
The Tribunal also noted at [25]:
“[25]The Tribunal said that the application lodged by the applicant’s husband in 1998 appeared to make claims for protection on the applicant’s behalf, even though the applicant had completed a “form D.” The written statement of claims appeared to be signed by both the applicant husband and herself, and its wording made it clear that claims were being made on behalf of both of them. The statement frequently used the plural pronouns to refer to the applicants, and referred to fears held by both of them. It appeared, therefore that both had been claiming to be refugees within the meaning of the Convention.”
To which the agent responded at [28] and [31]:
“[28]The agent referred to the Tribunal’s letter of 17 February 2011 and said that, in his opinion, the key word in s.48A was the word “further.” He said that the applicant’s application lodged in June 2010, was the first application made in her own right. He said that that application had been refused by the Department and, if the Tribunal were to affirm the Department’s decision, she would then have no right to make a further application for protection, but she was not precluded from making the application in June 2010. He said this was the point he had made in his submissions dated 21 February 2011.
[31]The Tribunal referred to the point it had made earlier in the hearing about the original claims for protection contained in the application for protection lodged in May 1998, namely that the claims were made on behalf of the applicant. The Tribunal said that, even if it were to conclude that the agent’s view of the law was correct, it might conclude that the original application included a claim for refugee status on the part of the applicant, in which case she would still be prevented from lodging a further application, by the provisions of s.48A.”
In its Findings and Reasons the Tribunal concluded at [CB 44 – 48]:
“[44]The Tribunal notes that, in making the decision dated 30 May 1998 (see DIAC file NO98/002191), the delegate referred to the applicant as a member of the family unit who had not made specific claims. However, he made a formal conclusion that he was satisfied that “none of the applicants listed at part A” of the decision – that is to say that neither the applicant’s husband nor the applicant herself – met the prescribed criterion in c.866.222. This indicates that the delegate did make a determination on the implied claims of the applicant. Similarly, when the matter was before the Tribunal (see RRT file 98/24102), the Member then constituting the Tribunal, while noting that no claims had been made by the applicant in her own right, said as follows:
“I am unable to find on the basis of the material before me that she is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Consequently, neither the applicant nor his wife satisfies the criterion set out in subsection 36(2) of the Migration Act for the grant of a protection visa.”
[45]In these circumstances, the Tribunals finds that the application lodged in May 1998 was an application for a visa, a criterion for which was that the applicant was a noncitizen in Australia to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. Given the provisions of paragraph 48A(2)(aa) of the Act, the Tribunal finds that, having been a party to the application lodged in May 1998, the applicant was, in June 2010, “a non-citizen who, while in the migration zone has made an application for a protection visa.” It finds therefore, that the applicant was precluded from making a further application for a protection visa and that, consequently, the application lodged on 17 June 2010 was not valid.
[46]Even if the Tribunal was mistaken in reaching these conclusions, the provisions of paragraph 48A(2)(ab) would then be relevant. Those provisions of the Act came into effect on 1 October 2001, after the judgment in Dranichnikov v Minister for Immigration and Multicultural Affairs [2001] 109 FCR 397 922 which was handed down in June 2001.
[47]On and after 1 October 2001, paragraph 48A(2)(ab) of the Act operated as described in paragraphs 7 – 8 above. The Tribunal therefore finds that he applicant was barred under the Migration Act from making a further protection visa application when she lodged that further application, the application under review, on 17 June 2010, because she was prevented by the legislation from making a further application for a protection visa as the spouse of a non-citizen in Australia, in accordance with paragraph 48A(2)(ab) of the Act.
[48]Given the Tribunal’s findings that the Minister has not made any determination under s.48B, it follows that the Tribunal finds that the applicant was not permitted to make a further application for a protection visa in June 2010 while in the migration zone, having previously made an application in May 1998.”
The applicant sought judicial review of the Tribunal’s decision and received assistance from a lawyer provided pursuant to the Minister’s scheme. On 27 June 2011 an Amended Application prepared by the lawyer was filed. The lawyer did not represent the applicant at the hearing. The grounds of application were said to be:
“1.The Tribunal erred in law by treading as invalid the application for a protection visa that was the subject of the review.
Particulars
(a)On 5 May 1998 the Applicant applied for a protection visa, subclass 866. At that time, the relevant criterion in cl 866.222 was that “(a) the Minister is satisfied that the applicant is a member of the same family unit as a person who has made specific claims under the Refugees Convention (a ‘claimant’); and (b) that claimant has been granted a Protection visa”.
(b)On 1 October 2001 Migration Legislation Amendment Act (No 6) 2001 inserted para 48A(2)(ab) into the Act which included in the definition of “application for a protection visa” the description “an application for a visa, a criterion for which is that the applicant is a non-citizen in Australia who is the spouse or a dependant of a non-citizen in Australia: (i) to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; and (ii) who holds a protection visa”.
(c)The terms of 48A(2)(ab) as introduced on 1 October 2001 did not apply to the criteria for a protection visa under which the Applicant applied on 5 May 1998, because the terms “a member of the same family unit” and “the spouse or a dependant” are not equivalent. That provision could therefore not have prevented the Applicant from applying again for a protection visa at that time.
(d)On 1 July 2009 the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008, Schedule 10 Part 2, amended s 48A(2)(ab) by substituting “a member of the same family unit” for “the spouse or a dependant”. However, cl 24 stipulated that the amendment only applied to applications for visas (ie first applications, since it was referring to the expression used in 48A(1)(a)) made on or after the commencement of that Part, or made but not decided before the commencement. It therefore did not apply to the application lodged by the Applicant on 5 May 1998 which was decided on 30 May 1998.
(e)The Tribunal incorrectly interpreted the law in finding that the current version of s 48A(2)(ab) applied to the Applicant.
(f)The Tribunal also erred in finding that the Applicant came within s 48A(2)(aa), since she had not filed her application of 5 May 1998 on the basis of being a person to whom Australia owed protection obligations.”
The essence of the applicant’s amended claim is that the application should be considered on the basis of the legislation as it stood when she made her first application in 1998 and not on the basis that it stood when she made the second application on 17 June 2010. At that time s.48A read:
“48A Non‑citizen refused a protection visa may not make further application for protection visa.
(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 while in the migration zone.
(1A) For the purposes of this section, a non‑citizen who:
(a) has been removed from the migration zone under section 198; and
(b) is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d) or (e); is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a).
Note: Paragraphs 42(2A)(d) and (e) cover limited situations where people are returned to Australia despite their removal under section 198.
(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.
(2) In this section:
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; and
(ab) an application for a visa, a criterion for which is that the applicant is a non‑citizen in Australia who is a member of the same family unit as a non‑citizen in Australia:
(i) to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; and who holds a protection visa; …”
Section 48A as it applied on 5 May 1998 was in a different form:
“48A Non-citizen refused a protection visa may not make further application for protection visa
(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 while in the migration zone.
(2) In this section:
application for a protection visa includes:
(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; and
(b) an application for a decision that a non-citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; and
(c) an application covered by paragraph (a) or (b) that is also covered by section 39 of the Migration Reform Act 1992.”
It is correct to say that an application from a person who applied purely as a member of the principal applicant’s family unit in 1998 and did not make specific claims of their own, was considered to be distinct from an application for a protection visa made by someone who had made specific claims. The applicant who had made no claims was not statute barred by s.48A; Dranichnikov v Minister for Immigration [2001] 109 FCR 397; 64 ALD 644; [2001] FCA 769 and Soondur v Minister for Immigration [2002] 12 FCR 578; [2002] FCAFC 324. It was the findings in these cases that led to the amendments to the Act that came into force pursuant to the Migration Legislation Amendment Act (No.6) 2001 under which s.48A(2)(ab) was inserted into the Act. The Explanatory Memorandum makes the intention of the amendment clear. It states that the effect of the amendment is:
“…that the existing section 48A bar on making further protection visa applications applies to unsuccessful protection visa applicants where the application relied on the grounds that the applicant was the spouse or dependant of a person who is owed protection obligations under the Refugees Convention. This change is necessary to prevent misuse of the protection visa process by family groups wishing to prolong their stay in Australia by lodging protection applications serially, each member taking turns to advance claims for protection while the others apply as family members.”
It seems to me that the amendment was enacted to prevent the very sort of activity which presently arises from occurring. That is, where an applicant prolongs their stay by reapplying in their own right after the person to whom their first application was joined has been found not to be owed protection as a refugee.
I am satisfied that the Tribunal was correct when it interpreted s.48A as applying in the form that existed when the second application was made and by applying the criteria there specified in determining whether or not the applicant had made a previous application. Further support for the Tribunal’s application of the current s.48A to applications made prior to the amendments may be found by drawing analogy from precedent on laws which have been found to apply retrospectively in limited circumstances. For example, in Sorby and Anor v Commonwealth of Australia and Ors (1983) ALR 237 the High Court held that newly introduced legislation applied to ongoing commissions (those that started prior to the relevant act’s commencement) as well as those formed after the enactment. Similarly, legislation in relation to elections considered to be prospective in R v Commonwealth Court of Conciliation and Arbitration ; Ex parte Grant 1950 81 CLR 27 was found to apply to elections that began before the passing of the legislation which continued after it. In the present case, it could be argued that s.48A should likewise apply to on-going claims.”
But perhaps the most authoritative view was expressed by the Full Bench Black CJ, Moore and Allsop JJ in SZGME v Minister for Immigration [2008] 247 ALR 467 at [72]:
“[72]Submissions were put on behalf of SZGME that she made no application for a protection visa unless and until she filed with the Department her own separate claims. That is not so. The relevant form for a subclass 866 visa, and regulation 866 at the relevant time which set out the criteria for a protection visa, made clear that someone is an applicant for a protection visa even if he or she is a member of the same family unit as someone who makes specific claims under the Refugees Convention.”
The Full Bench returned to this point at [89] and [90]:
“[89]Thus, there were two ways to obtain a protection visa: (a) to have claims under Art 1A(2) of the Refugees Convention (see the criterion referred to in s 36(2) of the Migration Act as it stood in 1996); and (b) to be a member of the family unit of someone who was granted a protection visa on the basis of his or her own claims.
[90] The separate basis for a protection visa in s 36(2) led a Full Court in Dranichnikov v Minister for Immigration and Multicultural Affairs[2001] FCA 769; (2001) 109 FCR 397 to conclude that the phrase "application for a protection visa" in s 48A only encompassed the protection visa provided for by s 36(2) – that is, where the claims were made by the applicant. Section 48A was later amended to include in the phrase "application for a protection visa" in that section the application by a family member: s 48A(2)(ab). In any event, it is clear from s 31(3) and the Regulations that persons in the position of SZGME were, when basing their application on family membership, applying for a protection visa. Nor was there any reason why an applicant could not apply for a protection visa under both bases.
The Full Bench determined SZGME on the basis of the law as it stood when the appellant made her “second application” in 2006 and not on the law pre the post Dranichnikov amendments. But it went further in refuting this applicant’s case by holding that the Tribunal was entitled to consider all the bases upon which an applicant made her claims. In the instant case, although the form indicated that the applicant had no particular claims of her own, the substance certainly suggested otherwise. It was, after all, the applicant who was to undergo the sterilisation process and the applicant who was to be prevented from having further children should she return. In my view the 2011 Tribunal was right to consider whether or not this aspect of the matter had been taken into account by the first Tribunal and conclude that it had. It also took the matters into account itself. If, as has been found, this applicant did have her own grounds for being considered a person to whom Australia owed protection obligations, then she would have been barred from making a second application even under the law as it stood prior to the amendments, the form of the application being no bar. As Rares J said in SZMIA v Minister for Immigration [2008] FCA 1909 at [35]:
“The Tribunal’s function of review was to review the claims the appellant actually made. Those of course include claims that the appellant applicant for review may advance orally at a hearing before the Tribunal.”
It would equally apply to claims advanced in writing as was the case at the first hearing.
In the circumstances I do not believe that the Tribunal fell into jurisdictional error in the manner in which it interpreted the provisions of the Act as they applied at the date of the application. I do not believe that the Tribunal should have applied the Act as at the time of the first application but I am satisfied that even if it had done so the applicant had made her own claims to be a person to whom Australia owed protection obligations and was therefore barred from making the second application even then. The application is dismissed. The applicant must pay the first respondent’s costs which I assess in the sum of $5,850.00.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM
Date: 23 August 2011
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