SZURV v Minister for Immigration
[2016] FCCA 1371
•24 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZURV v MINISTER FOR IMMIGRATION | [2016] FCCA 1371 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – protection visas – alleged retrospective invalidation of earlier application for protection visa under s.36(2)(a) by the introduction of the complementary protection criterion under s.36(2)(aa) – no invalidation – operation of s.7 of the Acts Interpretation Act 1901 (Cth) |
| Legislation: Acts Interpretation Act 1901 (Cth), ss.2, 7, 15AA Commonwealth of Australia Constitution Act (Cth), s.75 Legislative Instruments Act 2003 (Cth) Migration Amendment (Complementary Protection) Act 2011 (Cth) Migration Amendment Act 2014 (Cth) Migration Act 1958 (Cth), ss.36, 47, 48A, 474, 476 Migration Regulations 1994 (Cth) |
| Cases cited: AZABF v Minister for Immigration [2015] FCAFC 174 Butler v Attorney-General (Vict) (1961) 106 CLR 268 Edwards v Santos Ltd (2011) 242 CLR 421 Esber v The Commonwealth (1992) 174 CLR 430 |
| Applicant: | SZURV |
| Respondent: | MNISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 1922 of 2014 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 23 February 2016 |
| Delivered at: | Sydney |
| Delivered on: | 24 June 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jones. |
| Solicitors for the Applicant: | Adrien Joel & Co Solicitors. |
| Counsel for the Respondent: | Mr Markus. |
| Solicitors for the Respondent: | Australian Government Solicitor. |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1922 of 2014
| SZURV |
Applicant
And
| MNISTER FOR IMMIGRATION |
Respondent
REASONS FOR JUDGMENT
The Applicant is a male citizen of Lebanon aged 38 years, having been born on 4 February 1978.
He seeks in this proceeding by constitutional writs to quash what he terms the purported decision (purported decision) of the Respondent, the Minister for Immigration & Border Protection (Minister) made on 24 June 2014 to the effect that the application made by him on 23 June 2014 for a Protection (Class XA) visa (second Protection visa application) was not a valid application under the Migration Act 1958 (Cth) (Migration Act). He further seeks a declaration that the second Protection visa was validly made and a writ of mandamus requiring the Minister to consider it according to law.
The second Protection visa application relied solely on the complementary protection criteria provided for under s.36(2)(aa) of the Migration Act.
Jurisdiction
Both parties were in agreement that this Court had jurisdiction to determine the matter under s.476(1) of the Migration Act and I regard that agreement as soundly based for the following reasons:
a)Under s.476(1) of the Migration Act this Court has the same jurisdiction in relation to “migration decisions” as that of the High Court generally under s.75(v) of the Commonwealth Constitution.
b)Under s.5 of the Migration Act a “migration decision” is defined as meaning:
i)a privative clause decision; or
ii)a purported privative clause decision; or
iii)a non-privative clause decision; or
iv)an AAT Act migration decision.
c)Under s.47(1) of the Migration Act the Minister is required to consider a valid application for a visa and under s.47(3) is not to consider an application for a visa that is not a valid application.
d)The purported decision was not in fact made by the Minister personally or by his Delegate, but rather by an Administration Officer of the Department of Immigration and Border Protection. Nevertheless, it is clear from its terms and context that it was given for and on behalf of the Minister in connection with the operation of s.48A of the Migration Act and was a “privative clause” decision or a “purported privative clause decision” as defined in s.474, being a decision of an administrative character made under the Migration Act in the nature of a refusal to make or give or do the things provided for and within the scope of s.474(3)(a), (b), (g) or (j) or any of them.
Accordingly, in my view this Court has jurisdiction under s.476(1) to entertain judicial review of whether the purported decision was one which the Administrative Officer was authorized to make under the Migration Act on behalf of the Minister. The position of the Minister in this regard is analogous to that of a Court, for it is clear that a mistaken denial of jurisdiction by a Court is a jurisdictional error attracting a writ of certiorari: Edwards v Santos Ltd (2011) 242 CLR 421.
Further and in any event, the Full Court of the Federal Court in SZGIZ v Minister for Immigration (2013) 212 FCR 235, in the exercise of judicial review, made a declaration that an application for a protection visa lodged by the appellant in that case was not invalid under s.48A of the Migration Act so as to rectify the circumstances where an officer of the Department of Immigration and Citizenship had informed the appellant that his application was not valid. Accordingly SZGIZ (supra) would support the nature of the relief sought by the Applicant in this Court.
General Factual and Legal Background
The Applicant last entered Australia on 27 January 2012 under a Sponsored Family Visitor (Subclass 679) visa. He had previously travelled to Australia on five occasions between 2004 and 2009, each time returning to Lebanon before the expiry of the applicable visa.
The Applicant lodged an application for a Protection visa on 13 February 2012 (earlier Protection visa application). It was common ground between the parties that the earlier Protection visa application was a valid application as at the date it was lodged. This application was based on the criterion under s.36(2)(a) of the Migration Act to the effect that the Applicant was owed protection obligations by Australia because he was a refugee. Condition 866.211 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) at that date required, as a criterion to be satisfied, that the Applicant claimed to be a person to whom Australia had protection obligations under the Refugees Convention and made specific claims under the Refugees Convention. It was then in the following form:
866.21Criteria to be satisfied at time of application
866.211The applicant claims to be a person to whom Australia
has protection obligations under the Refugees
Convention and:
(a) makes specific claims under the Refugees Convention; or
(b)claims to be a member of the same family unit as a person who:
(i) has made specific claims under the Refugees Convention; and
(ii) is an applicant for a Protection (Class XA) visa.
Importantly, there was no claim made by the Applicant in his earlier Protection visa application on complementary protection grounds pursuant to s.36(2)(aa) of the Migration Act because that later section was not inserted into s.36 until 24 March 2012, as now discussed.
With effect from 24 March 2012, s.36 of the Migration Act was amended by the Migration Amendment (Complementary Protection) Act 2011 (Cth) (the 2011 Amendment Act) to introduce a complementary protection regime into the Act. In particular, s.36(2)(aa) of the Migration Act was inserted into s.36. Following the amendment s.36(2) provided:
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees1Protocol; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
Further, also commencing 24 March 2012, by Item 35 of Sch.1 (Item 35) to the 2011 Amendment Act, it was provided that the amendments made by that Act to the Migration Act, including the insertion of s.36(2)(aa) of the Migration Act, applied in relation to an application for a protection visa that was made on or after 24 March 2012 or a pending application for a protection visa made before 24 March 2012 (see Item 35(a)) which had not been finally determined within the meaning of s.5(9) (see Item 35(b)). The purpose of Item 35(b) was presumably to make it abundantly clear that the general rule of construction against the retrospective operation of a statute changing the law so as not to otherwise affect rights or liabilities by reference to past events, but rather to a future state of circumstances, was not applicable to s.36(aa).
Further, at the same time and consistently with the insertion of s.36(2)(aa) into the Migration Act, cond.866.211 to Sch.2 of the Migration Act was amended by the Migration Legislation Amendment Regulation 2012 (No. 1) which added a add a complementary protection ground criterion in sub paragraph 4 so that cond.866.211 then read as follows:
866.21 Criteria to be satisfied at time of application
866.211
(1)One of subclauses (2) to (5) is satisfied.
(2)The applicant:
(a)claims to be a person to whom Australia has protection obligations under the Refugees Convention; and
(b) makes specific claims under the Refugees
Convention.
(3)The applicant claims to be a member of the same
family unit as a person who is:
(a)mentioned in subclause (2); and
(b)an applicant for a Protection (Class XA) visa.
(4)The applicant claims to be a person to whom Australia has protection obligations because the applicant claims that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.
(5)The applicant claims to be a member of the same family unit as a person who is:
(a)mentioned in subclause (4); and
(b)an applicant for a Protection (Class XA) visa.
I observe at this point that from 24 March 2012 cond.866.211, on its proper construction, meant that an applicant for a Protection visa could claim under subparagraph 2 and subparagraph 4, or either of them. Obviously applicants would almost invariably choose to apply on both grounds and then the Minister would consider each sequentially in the order stated by the Full Court of the Federal Court in Minister for Immigration v SZQRB (2013) 296 ALR 525 at 40 ([69] – [71]). However, I do not read cond.844.211 as requiring applicants as a matter of law to claim under both subparagraphs 2 and 4.
On 5 July 2012 a Delegate of the Minister refused the Applicant’s earlier Protection visa application. Consistently with Item 35 of the 2011 Amendment Act, because the earlier Protection visa application was one which had not been finally determined, the Delegate considered not only whether Australia had protection obligations to the Applicant as a refugee but also whether the Applicant satisfied the complementary protection criteria under s.36(2)(aa) of the Migration Act and he found that he was not so satisfied as to both criteria and refused to grant a Protection visa.
On 6 February 2013 the Refugee Review Tribunal (RRT) affirmed the Delegate’s refusal of the earlier Protection visa application. The RRT in its review of the Delegate’s decision likewise considered the refugee criteria and the complementary protection criteria.
As stated in paragraph 2 above, the Applicant then lodged his second Protection visa application on 23 June 2014. However, prior to that date, with effect from 28 May 2014, s.48A of the Migration Act was amended by the Migration Amendment Act 2014 (Cth) (the 2014 Amendment Act) which section was specifically introduced to overcome the effect of the decision of the Full Court of the Federal Court of Australia of 3 July 2013 in SZGIZ (supra). That case had relevantly held that the then existing form of s.48A did not prevent a valid further Protection visa application being made based upon a criterion which did not form the basis of a previous unsuccessful visa application, with the consequence that an application for a Protection visa in reliance on s.36(2)(aa) of the Migration Act was not barred by an earlier unsuccessful application under s.36(2)(a) made prior to the commencement of the operation of s.36(2)(aa) on 24 March 2012.
The Explanatory Memorandum to the Migration Amendment Bill 2013 relevantly provided as follows:
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.
The Migration Amendment Bill 2013 was passed into law as the 2014 Amendment Act and, as noted above, commenced on 28 May 2014, prior to the Applicant’s second Protection visa application lodged on 23 June 2014. From 28 May 2014 s.48A of the Migration Act provides as follows:
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 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.
(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.
(2) In this section:
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; and
(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.
The Full Court of the Federal Court held in AZABF v Minister for Immigration [2015] FCAFC 174 that s.48A(1C)(b) of the Migration Act in conjunction with s.48A(1) was unambiguous in its prohibition of a further application for a Protection visa being made after a previously unsuccessful application, regardless of whether the criterion relied on in the further visa application existed earlier or not.
It was because of s.48A of the Migration Act as operative since 28 May 2014 that the Administrative Officer in the purported decision of 24 June 2014 asserted that the second Protection visa application was not a valid application under the Migration Act, saying:
On 5 July 2012 you were refused a Protection (class XA) visa. Under section 48A of the Act a person who has not left Australia since they were refused a Protection visa is prevented from making a subsequent Protection visa application… There is no right of merits review of the assessment that an application is invalid.
For finality, I note that the validity of an application for a visa under the Migration Act is determined by ss.45 and 46 thereof and the regulations made under those sections. One such regulation is reg.2.07 which as at 13 February 2012 was in the following form:
2.07 Application for visa — general
(1)For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1:
(a) the approved form (if any) to be completed by an applicant;
(b)the visa application charge (if any) payable in relation to an application;
(c)other matters relating to the application.
(3) An applicant must complete an approved form in accordance with any directions on it.
(4)An application for a visa that is made using an approved form is not a valid application if the applicant does not set out his or her residential address:
(a)in the form; or
(b) in a separate document that accompanies the application.
The relevant part of Schedule 1 referred to in reg.2.07(1) of the Regulations was Item 1401 of Sch.1 which specified Form 866 as the approved form for a Protection (Class XA) visa.
Applicant’s Argument
In these factual circumstances and this legal framework the Applicant submits that his earlier Protection visa application was retrospectively invalidated by the combined effect of the introduction of s.36(2)(aa) and the coming into operation of Item 35 of the 2011 Amendment Act and cond.866.211(4), with the result that s.48A of the Migration Act is not applicable to his subsequent second Protection visa application which should in effect be regarded as a first protection visa application.
Having regard to the nature of this submission I regard it as appropriate in this case to set out in full the Ground relied upon by the Applicant in this case, which is as follows:
Grounds of application
1.The Application for a Protection Visa is not invalid because the Applicant is not prevented by Section 48A of the Migration Act 1958, from lodging such application.
Particularsi)The Applicant initially applied for a protection visa on 13 February 2012 (the first application) in accordance with section 36(2)(a) of the Migration Act (the Act). The application was refused on 5 July 2012. The Applicant applied to the Refugee Review Tribunal.
As at date of lodgement, claims were presented seeking to satisfy Schedule 1 criteria.ii)A further protection visa, which constitutes the basis of this application, was made on 23 June 2014, in reliance upon section 36(2)(aa) of the Act.
iii)Subsequent to filing the first application the Respondent relied upon Schedule 1 Item 35(b) of the Migration Complementary Protection Act (the Provision), so as “deem” or “ascribed” the protection visa with additional Schedule 1 criteria referred to in Section 36(2)(aa) of the Act, by virtue of the application of Subsection 5 (9) of the Act which defines “final determination”.
iv)The structure of the Act is based in part upon Statutory, regulatory and Schedule criteria which must be satisfied as at time of lodgement of visa application (in this instance, for a Protection (class XA) visa). There are multiple mandatory conditions which must be satisfied at that time which include;-
- A visa application can only be valid if it is for a prescribed class and satisfies criteria and requirements. (Section 46(1)(a) and (b)).
- Regulations prescribed criteria to enable a visa to constitute a valid application (Section 46(3)).
- The Minister cannot consider an invalid application (Section 47(3)).
- Schedule 1 Part 4 Item 1404 (1) provides that the approved form is to be completed, in this instance, Protection Visa form 866, a Schedule 1 criteria.
- Regulation 2.07(3) requires an Applicant to “complete an approved form in accordance with any directions on it”. The Applicant never completed the form designed to elicit instructions presenting complementary claims.
- The prescribed criteria which should be satisfied as at time of application are presented at Schedule 2 clause 866.211. As at the time of the first application reference was made only to claims with respect to the Refugee Convention. There were no equivalent criteria as currently prescribed at clause 866.211(4).
v)The effect of the Provision is to invalidate the first application considering the Schedule 1 date of lodgement criteria could not be satisfied as at time of decision notwithstanding the application was valid as at the time of lodgement. The application of Section 5(9) of the Act could not authorise waiver of the Schedule 1 criteria.
vi)Whilst there is no impediment to an Applicant further particularizing claims subsequent to lodgement, such process is distinct from the Respondent and Tribunal considering as part of its jurisdiction mandatory Schedule 1 criteria which did not exist at time of lodgement and which was not applied for.
vii)The Applicant’s complementary claims were purportedly considered upon the basis of that which could be deemed or interpreted from Convention claims presented. Application of Schedule 1 criteria and the Provision does not authorise such process.
viii)As at time of lodgement, the Applicant never knew or understood the character of the complementary claims deemed to exist by the Department. The visa decision did not reflect the application applied for.
To put it in shorter form, I understand the Applicant’s argument as being to the effect that his earlier Protection visa application was rendered invalid because of the introduction by s.36(2)(aa) of the Migration Act of the complementary protection criteria from 24 March 2012, and their application by Item 35(b) to pending applications for a protection visa which had not been finally determined, such as the Applicant’s, in the context of the statutory provisions specifically referred to above, and in particular cl.866.211(4) of Sch.2 to the Regulations. This result followed, so it was submitted, for the reason expressed in paragraph 26 of the Applicant’s Written Submissions:
26.As a result, the earlier application, in order to succeed, was required to claim complementary protection in accordance with clause 866.211(4). The earlier application necessarily failed to do so, as clause 866.211(4) had not been made at the time the earlier application was lodged. The result was that the earlier application was doomed to fail and was, therefore, not capable of consideration as a valid application.
Consideration
I reject the argument and submissions that the earlier Protection visa application was rendered invalid by the introduction of complementary protection criteria from 24 March 2012.
In my opinion the Applicant, at the time that he made his earlier Protection visa application, had a relevant “right” by virtue of s.65(1) of the Migration Act to be granted the visa he applied for if the Minister was satisfied under s.65(1): see Re Minister of Immigration; Ex Parte Cohen (2001) 177 ALR 473 per McHugh J.
In my opinion it was a substantive right of a quasi-judicial nature to have his earlier Protection visa application visa dealt with in accordance with the law applicable at the time under the Migration Act.
The purpose of the introduction of the complementary protection criteria was stated in paragraph 63 of the relevant Explanatory Memorandum to the 2011 Amendment Act to be as follows:
63.New paragraph 36(2)(aa) provides for an alternative criterion for a protection visa, which is that the applicant for the visa is a non-citizen in Australia (other than a non-citizen mentioned in existing paragraph 36(2)(a)) to whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
The purpose of Item 35 was explained in the same Explanatory Memorandum to be as follows:
Item 35 Application
169.This item provides for the application of amendments made by Schedule 1.
170.This item provides that the amendments made by Schedule 1 apply in relation to an application for a protection visa (within the meaning of the Act) that is made on or after the day on which this item commences; or that is not finally determined (within the meaning of subsection 5(9) of the Act) before the day on which this item commences.
171.The effect of this item is that protection visa applications not decided by the Minister at the time of commencement, and protection visa applications made on or after the day on which this item commences, will have to be considered in accordance with the amendments made by Schedule 1 of this Act. Additionally, protection visa applications not decided by the RRT at the time of commencement will have to be considered in accordance with the amendments made by Schedule 1 of this Act.
Now, whilst it is clear that the repeal or amendment of an earlier statute by a later and subsequent statute can operate retrospectively to disturb, alter, effect, withdraw or limit substantive rights which had accrued prior to the commencement of the later statute, there must be a clear manifestation in the later statute of an intention to achieve that result. In this connection, Gaudron J said Saraswati v The Queen (1991) 172 CLR 1 at 17:
“It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other: see Butler v Attorney-General (Vict)[1]”
[1] (1961) 106 CLR 268 at 276 per Fullagar J, 290 per Windeyer J.
This statement of the general rule of construction was cited with approval by the High Court in the judgment of Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ in Shergold v Tanner [2002] 209 CLR 126 at 137 ([35]) when they said with reference to Butler (supra):
In Butler, Kitto J expressed the question as being whether the two items of legislation could stand or live together[2]. In the same case, Fullagar J spoke of "contrariety" [3], Taylor J of "direct conflict"[4], and Windeyer J asked whether the two statutes were clearly and indisputably contradictory displaying such repugnancy that they could not be reconciled[5]. Later, in Travinto Nominees Pty Ltd v Vlattas[6], Gibbs J used the expression "could stand together".
[2] (1961) 106 CLR 268 at 280.
[3] (1961) 106 CLR 268 at 275. See also Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 375 [67].
[4] (1961) 106 CLR 268 at 285.
[5] (1961) 106 CLR 268 at 290
[6] (1973) 129 CLR 1 at 34.
In my view, there is nothing in any part of the complementary protection legislation effective as of 28 March 2012 which evinced or manifested either expressly or by necessary implication any intention to render invalid and ineffective the earlier Protection visa application. To the contrary, I consider that the legislation introducing the complementary protection criteria and particularly Item 35 assumed and took as a given the continued efficacy and validity of any protection visa application that had been made before 28 March 2012, but not finally determined before that date.
Further, I consider that to accept the argument made for the Applicant in this case would produce a patently unintended, incongruous and absurd result. Its acceptance would seem to mean that legislation designed to give applicants for protection visas an additional ground for protection had the effect of invalidating applications for Protection visas made earlier than 24 March 2012 which had not yet been dealt with at that date. Such a result would lead to the opposite to what Item 35 sought to achieve. Such a construction would not be to prefer one that “would best achieve the purpose or object of the Act: s.15AA of the Acts Interpretation Act”: see generally the decision of the Full Court of the Federal Court in JJ Richards and Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53 ([49]-[52]).
Further, and in any event, I consider that the validity of the earlier Protection visa application was preserved by the combined force and effect of s.2(2) and s.7(2) of the Acts Interpretation Act 1901 (Cth) (the Acts Interpretation Act). They relevantly are as follows:
Application of Act
2. …
(1) This Act applies to all Acts (including this Act).
Note: This Act also applies to legislative instruments, notifiable instruments and other instruments: see subsection 13(1) of the Legislation Act 2003 and subsection 46(1) of this Act.
(2) However, the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention.
7.If an Act, or an instrument under an Act, repeals or amends an Act (the affected Act) or a part of an Act, then the repeal or amendment does not:
...(b) affect the previous operation of the affected Act or part (including any amendment made by the affected Act or part), or anything duly done or suffered under the affected Act or part; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the affected Act or part; or
...
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.
Any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the affected Act or part had not been repealed or amended.Note: The Act that makes the repeal or amendment, or provides for the instrument to make the repeal or amendment, may be different from, or the same as, the affected Act or the Act containing the part repealed or amended.
I further note that s.13 of the Legislative Instruments Act 2003 (Cth) (now since March 2016 the Legislation Act) applies the Acts Interpretation Act to instruments such as the Regulations.
As already stated, I am of the view that at the date being 13 February 2012 that the Applicant made his earlier Protection visa application he had a substantive right to have it dealt with in accordance with the provisions of the Migration Act in force at that time. His right in that respect was protected and preserved under s.7(2) of the Acts Interpretation Act (and also, to the extent necessary, under the Regulations) so that the amendment to the Migration Act introducing the complementary protection criteria did not affect the previous operation of the Migration Act or the validity of the earlier Protection visa application and the Applicant’s accrued right to progress the same.
There was no expression of a “contrary intention” for the purposes of s.2(2) of the Acts Interpretation Act in the complementary protection legislation to the effect that visa applications such as the earlier Protection visa application were in some way invalidated. I consider that my view in this regard is consistent with the decision of the High Court in Esber v The Commonwealth (1992) 174 CLR 430 where at 440 – 441 the majority comprised of Mason CJ, Deane J, Toohey J and Gaudron J said:
Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely “a power to take advantage of an enactment”. Nor was it a mere matter of procedure ; it was a substantive right. Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, “although that right might fairly be called inchoate or contingent”. This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s. 8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act. [footnotes omitted and s.8 of the Acts Interpretation Act is now s.7]
Conclusion
In my view the Applicant does not succeed in his attack on the purported decision. There was no jurisdictional error and the application should be dismissed with costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 24 June 2016
0
12
8