SZUWV v Minister for Immigration and SZVFJ v Minister for Immigration
[2016] FCCA 2517
•30 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUWV v MINISTER FOR IMMIGRATION and SZVFJ v MINISTER FOR IMMIGRATION | [2016] FCCA 2517 |
| Catchwords: MIGRATION – Application for review – application for protection visa deemed invalid by a delegate of the respondent Minister’s department on the basis of s.48A of the Migration Act 1958 (Cth) – whether “first” application was invalid – application for review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 48A, 49A, 476, Migration Regulations 1994 (Cth), reg.2.07, Schedule 1, Schedule 2, |
| Cases cited: SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 299 ALR 246 SZUZM v Minister for Immigration [2015] FCCA 1202 |
| Applicant: | SZUWV |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2193 of 2014 |
| Applicant: | SZVFJ |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2776 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 1 March 2016 |
| Date of Last Submission: | 27 May 2016 |
| Delivered at: | Sydney |
| Delivered on: | 30 September 2016 |
REPRESENTATION
| Counsel for the Applicant in SYG 2193 of 2014: | Mr O Jones |
| Solicitors for the Applicant in SYG 2193 of 2014: | Adrian Joel Solicitors |
| Solicitor for the Respondent in SYG 2193 of 2014: | Mr A Keevers for Sparke Helmore |
| Counsel for the Applicant in SYG 2776 of 2014: | Mr O Jones |
| Solicitors for the Applicant in SYG 2776 of 2014: | Firmstone & Associates |
| Counsel for the Respondent in SYG 2776 of 2014: | Ms R Francois |
| Solicitors for the Respondent in SYG 2776 of 2014: | Australian Government Solicitors |
ORDERS
IN PROCEEDING SYG 2193 of 2014
The leave sought in the Application in a Case filed on 11 April 2016 is refused.
The application made on 6 August 2014 is dismissed.
The applicant pay the respondent’s costs as agreed or assessed.
IN PROCEEDING SYG 2776 of 2014
The leave sought in the Application in a Case filed on 7 April 2016 is refused.
The application made on 7 October 2014 is dismissed.
The applicant pay the respondent’s costs as agreed or assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2193 of 2014
| SZUWV |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
SYG 2776 of 2014
| SZVFJ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
The two applicants currently before the Court (SYG 2193/2014 – “SZUWV” and SYG 2776/2014 – “SZVFJ”) made applications pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decisions made by delegates of the Minister that the applications made by each of them for protection visas were not valid by operation of s.48A of the Act. Each had applied for, and been refused, protection visas previously. The issue before the Court was said to arise with the introduction of the complementary protection amendments to the Act on 24 March 2012 (Migration Amendment (Complementary Protection) Act 2011 (Cth)) and the application of the judgment of the Full Federal Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 299 ALR 246 (“SZGIZ”) on 3 July 2013.
These two applications were the subject of attention by the Court initially with nine other applications, all filed at that time, by the same solicitor. The Court was told that these two cases, and the case of SZURX (SYG 1924/2014), and eight others had identical questions of law and similar questions of fact such that they should be heard together.
In these circumstances I was persuaded that it was an efficient use of the Court’s resources to hear SZURX, SZUWV and SZVFJ together because these three, unlike the others, were all matters where the respective “first” applications were made after the introduction of the complementary protection criteria to the Act. As it set out below, and in retrospect, the manner in which the applicants’ legal representatives have chosen to prosecute these cases has been inimical to the efficient disposition of each case, and for that matter, the Court’s resources.
After the conclusion of the final hearing and, about two months later, after hearing argument on whether to grant leave to the applicants to further amend their applications with new grounds, SZURX filed a Notice of Discontinuance. However, given that a large part of the submissions and arguments common to all cases were made with specific reference to SZURX I have included these arguments and the reference to SZURX, for the sake of convenience, and to explain the submissions in the context in which they were specifically made.
Applications Before the Court
The grounds in each of the cases as initially pleaded were as follows:
1)SZURX made on 10 July 2014:
“1. The Application for Protection Visa was not invalid because the Applicant was not prevented by Section 48A of the Migration Act 1958, from lodging a Protection Visa Application.
Particulars
i. The Applicant applied for a protection visa on 3 July 2012 (the first application) seeking to invoke the application of both ‘Convention’ grounds in accordance with Section 36(2)(a) of the Migration Act (the Act), and grounds seeking to establish a real risk of significant harm with reference to Section 36(2)(aa) of the Act.
The first application was refused on 19 September 2012 and review request made to Refugee Review Tribunal was refused on 25 March 2014.
ii. A further protection visa application was lodged with the Respondents on 23 June 2014, the validity of which constitutes the basis of his application.
iii. 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)).
- 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.
iv. Procedures applicable to lodgement of a valid Protection (Class X4) visa application include the completion of a prescribed form 866 which must be completed in accordance with Schedule 1 Item 1401 (1).
There must be a nexus between questions presented within the Form in seeking to elicit information so as to satisfy Section 46(1)(b) and Regulation 2.07(3) so as to ensure the application of Section 47(1) in addition to other mandatory criteria which must be satisfied as at time of lodgement of the visa.
v. The Form 866 which constituted the first application filed by the Applicant could not be regarded as valid, as Part C excluded any reference, or question within the Form which could satisfy harm based Section 36 2(aa) claims, and sort information which explicitly limited the issues to harm based upon Convention grounds.
The definition of reasons for claiming protection was limited and there was no reference to ‘other international obligations’ or significant harm.
The questions presented excluded any reference to establishing any harm, so as to satisfy as at time of lodgement criteria.
vi. The visa refused in first application did not have the character of the visa which the Applicant had applied.
The first application could not be construed as an application for a protection visa which formally enabled consideration of criterion referred to at Section 36 2(aa).”
2)SZUWV made on 6 August 2014:
“Ground 1: Procedures requires by law to be observed - the original application was not in the 'approved' form.
1. The respondent was required to observe procedures by law and those procedures were not observed.
Particulars
a) The original application was not in the ‘approved’ form.
b) On 13 August 2012, the Applicant first applied to the respondent for a protection visa.
c) The design date of the Application Form 866, was dated 11/11. It was a defunct form, which entirely excludes the complementary protection criterion. As a result, the Applicant made no complementary protection claims.
d) On 13 December 2012, the delegate for the Minister refused the visa, and on 14 March 2014, the Tribunal affirmed the decision by the delegate to refuse the Applicant's protection visa.
e) A second protection visa was lodged with the Respondent on 28 July 2014, the validity of which constitutes the basis of this application.
f) On 31 July 2014, the Respondent sent a notice of invalidity to the Applicant. Informing the Applicant that his second application was barred by Section 48A of the Act.
g) The original application lodged with the Department had not been completed in accordance with the approved Form 866.
h) The Respondent did not comply with Regulation 2.07(3) and the application, was originally submitted, was not a valid application: S46(1)(b) of the Act.
i) The Respondent was therefore precluded from considering the application for a protection visa under S47(3) of the Act.
Ground 2: Error of Law - Section 48A of the Migration Act was no bar to lodging a further application
2. The decision by the Respondent involved an error of Law, whether or not the error appears on the record of the decision.
Particulars
a) The Applicant was not barred by Section 48A of the Act from lodging a further protection visa application.
b) On 28 July 2014, the Applicant made a farther application and on 31 July 2014, the Applicant was notified by the Respondent by way of letter that his application was barred by Section 48A of the Act and was therefore invalid.
c) Section 48A of the Act, prohibits a non-citizen from making a further application for a protection visa while in the migration zone.
d) Section 48A was amended by the Migration amendment Act 2014 and applies differently depending on when the further application for a protection visa was made.
e) Where a further application for a protection for a protection visa was made before 28 May 2014, as in this case, Section 48A applies as it was before amendment by the Migration Amendment Act 2014 (Cth).
f) The further application did not duplicate the same essential criterion for the grant of the visa as in the earlier unsuccessful application, which was invalid.
g) Even if the Applicant had changed the nature of his application, the further application did not engage that provision, but relied instead on the complementary protection criterion in S.36(2)(aa).
Ground 3: Natural Justice
3. The Respondent breached the rules of natural justice in connection with the making of the decision.
Particulars
a) The Respondent deprived the Applicant of a fair hearing and the ability to give evidence and present arguments in violation of S414 and 425 of the Migration Act.
b) The Applicant has been effectively prevented from raising and having heard his complementary protection claims due to the acceptance by the Respondent of the incorrect Form 866, for the reasons particularised 1 (a) - (i).
c) Alternatively, the Applicant has been effectively prevented from raising and having heard his complementary protection claims due to the bar on him making his second application by the Respondent reasons particularised 2 (a)- (g).”
[Errors in the Original.]
3)SZVFJ made on 7 October 2014:
1. The Application for Protection Visa was not invalid because the Applicant was not prevented by Section 48A of the Migration Act 1958, from lodging a Protection Visa Application.
Particulars
i. The Applicant applied for a protection (class XA) visa on 20 July 2012 (the first application) seeking to invoke the application of ‘Convention’ grounds in accordance with Section 36(2)(a) of the Migration Act (the Act).
The first application was refused on 28 September 2012 and review request made to Refugee Review Tribunal was refused on 17 July 2013.
ii. A further protection visa application was lodged with the Respondents on 12 September 2014, the validity of which constitutes the basis of his application.
iii. The first application should not be regarded as valid, as at the time of lodgement mandatory conditions could not be satisfied, with respect to the application of Section 46(1)(b), Regulation 2.07(3), Schedule 1 Part4 Item 1401 and Schedule 2 Clause 866.211 of the Act.
iv. Procedures applicable to lodgement of a valid Protection (Class XA) visa application include the completion of a prescribed form 866 which must be completed in accordance with Schedule 1 Item 1401 (1).
There must be a nexus between questions presented within the Form in seeking to elicit information so as to satisfy Section 46(1)(b) and Regulation 2.07(3) so as to ensure the application of Section 47(1) in addition to other mandatory criteria which must be satisfied as at time of lodgement of the visa.
v. The Form 866 which constituted the first application filed by the Applicant on 20 July 2012 could not be regarded as valid, as Part C excluded any reference ,or question within the Form which could satisfy harm based Section 36 2(aa) claims, and sort information which explicitly limited the issues to harm based upon Convention grounds.
The definition of reasons for claiming protection was limited and there was no reference to ‘other international obligations’ or significant harm.
The questions presented excluded any reference to establishing any harm, so as to satisfy as at time of lodgement criteria.
vi. The Migration Amendment (Complementary Protection) Act 2011 (the Act) does not include any provision authorising retrospective application of a mandatory as at the time of lodgement criteria with respect to the first application. The Applicant did not convey any representation directly and wilfully invoking the application of Subclause 866.211(4). This provision is distinct from 866.211(2)(a).
Mandatory as at time of lodgement criteria cannot be deemed to exist as at time of decision making and in accordance with Section 411 of the Migration Act, the Refugee Review Tribunal does not have jurisdiction to review a visa criteria which has not been applied for.
vii. The intent presented at Schedule 1 Item 1401(1) of the Migration Act with respect to part C, Question 67 of form 866 C, is to validate the particulars presented within an application by completion of a statutory declaration within the terms presented at Section 8A of the Statutory Declarations Act 1959 and in accordance with the prescribed format presented at Schedule 1 Regulation 3. The Declaration completed by the Applicant is not in the prescribed form and should not be regarded as a valid declaration.
viii. Form 866, particularly at part B & C, can only be regarded as an ‘approved form’ within the meaning of Section 495 or Regulation 1.18 if such form facilitate the satisfaction of Section 46(1)(b) of the Migration Act and other provisions so as to establish valid lodgement.
ix. The first application could not be construed as an application for a protection visa which formally enabled consideration of criterion referred to at Section 36 2(aa).
On 12 November 2014, the two current matters, and SZURX, were set down for final hearing on 1 March 2016. Orders were made for the filing by way of affidavit of any evidence and written submissions by each of the parties (14 days and 7 days respectively before the final hearing).
The parties also filed a statement of agreed facts by orders made by consent on 17 September 2014, 23 September 2014, and 12 November 2014 in relation to each of the applicants. They are as follows:
1)SZURX:
“[1] The applicant claims to be a national of the Lebanon.
[2] He last arrived in Australia on 17 June 2012 on a Sponsored Family Visitor (Subclass 679) visa, issued on 11 April 2012.
[3] He applied for a Protection (Class XA) visa on 3 July 2012 (the first Protection visa application).
[4] With effect of 24 March 2012, ie prior to the applicant having lodged his application for a Protection visa, s 36 of the Migration Act 1958 (Cth) (the Act) was amended by the Migration Amendment (Complementary Protection) Act 2011 (Cth).
[5] The first Protection visa application was refused by a delegate of the respondent on 19 September 2012.
[6] The applicant sought review by the Refugee Review Tribunal (RRT) of the delegate's decision on 3 October 2012. The RRT affirmed the decision of the delegate on 25 March 2014.
[7] On 3 July 2013, the Full Court of the Federal Court of Australia gave judgment in the matter of SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235.
[8] With effect of 28 May 2014, s 48A of the Act was amended by the Migration Amendment Act 2014 (Cth).
[9] Under cover of a letter from his solicitors, dated 20 June 2014 and received by the Department of Immigration arid Border Protection (the Department) on 23 June 2014, the applicant sought to lodge a further application for a Protection visa (the second Protection visa application), asserting that s 48A of the Act did not apply to the second Protection visa application because the first Protection visa application was lodged on an ‘outdated’ form, and was consequently invalid.
[10] By letter dated 24 June 2014, a Departmental officer notified the applicant to the effect that the second Protection visa application was not a valid application by virtue of s 48A of the Act.
[11] On 10 July 2014, the present proceeding was commenced by way of an application under s 476 of the Act
2)SZUWV:
“[1] The applicant claims to be a national of Pakistan.
[2] He last arrived in Australia on 22 March 2011 of a Student (Temporary) (Class TU) visa.
[3] He applied for a Protection (Class XA) visa on 13 August 2012.
[4] With effect of 24 March 2012, s 36 of the Migration Act 1958 (Cth) (the Act) was amended by the Migration Amendment (Complementary Protection) Act 2011 (Cth).
[5] The applicant's application for Protection visa was refused by a delegate of the respondent on 13 December 2012.
[6] The applicant sought review by the Refugee Review Tribunal (RRT) of the delegate's decision on 18 December 2012. The RRT affirmed the decision of the delegate on 14 March 2014.
[7] On 3 July 2013, the Full Court of the Federal Court of Australia gave judgment in the matter of SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235.
[8] With effect of 28 May 2014, s 48A of the Act was amended by the Migration Amendment Act 2014 (Cth).
[9] Under cover of a letter from his solicitors, dated 17 July 2014 and received by the Department of Immigration and Citizenship (the Department) on 28 July 2014, the applicant sought to lodge a further application for a Protection visa, expressly relying on s 36(2)(aa) of the Act.
[10] By letter dated 31 July 2014, a Departmental officer notified the applicant to the effect that his application for a visa was not a valid application by virtue of s 48A of the Act.
[11] On 6 August 2014, the present proceeding was commenced by way of an application under s 476 of the Act.”
3)SZVFJ:
“[1] The applicant claims to be a national of the Lebanon.
[2] He arrived in Australia on 13 January 2011 on a Vocational Education and Training Sector (Subclass 572) visa, granted to him on 4 January 2011.
[3] He applied for a Protection (Class XA) visa on 20 July 2012 (the first Protection visa application).
[4] With effect of 24 March 2012, ie prior to the applicant having lodged his application for a Protection visa, s 36 of the Migration Act 1958 (Cth) (the Act) was amended by the Migration Amendment (Complementary Protection) Act 2011 (Cth).
[5] The first Protection visa application was refused by a delegate of the respondent on 28 September 2012. In doing so, the delegate considered, and rejected, the applicant's claims under both s 36(2)(a) and s 36(2)(aa) of the Act.
[6] The applicant sought review by the Refugee Review Tribunal (RRT) of the delegate's decision on 17 October 2012. The RRT affirmed the decision of the delegate on 18 July 2013.
[7] On 3 July 2013, the Full Court of the Federal Court of Australia gave judgment in the matter of SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235.
[8] Under cover of a letter from his then migration agent, dated 14 April 2014 and received by the Department of Immigration and Border Protection (the Department) on that day, the applicant sought to lodge a further application for a Protection visa (the second Protection visa application).
[9] By letter dated 15 April 2014, a Departmental officer notified the applicant to the effect that the second Protection visa application was not a valid application by virtue of s 48A of the Act.
[10] With effect of 28 May 2014, s 48A of the Act was amended by the Migration Amendment Act 2014 (Cth).
[11] Under cover of a letter from his solicitors, dated 9 September 2014 and received by the Department of Immigration and Border Protection (the Department) on 12 September 2014, the applicant sought to lodge a further application for a Protection visa (the third Protection visa application).
[12] By letter dated 12 September 2014, a Departmental officer notified the applicant to the effect that the third Protection visa application was not a valid application by virtue of s 48A of the Act.
[13] On 7 October 2014, the present proceeding was commenced by way of an application under s 476 of the Act, seeking to challenge the decision made on or about 12 September 2014 to the effect that the third Protection visa application is an invalid application.
On 4 November 2014, and then on 5 November 2014, the applicants in SZUWV and SZURX filed written submissions ahead of a directions listing on 12 November 2014. Subsequently, and ultimately, in accordance with the orders made for the preparation for hearing SZUWV and SZURX filed written submissions on 18 February 2016. The Minister filed written submissions on 23 February 2016 in all the matters.
The applicants’ written submissions filed on 4 and 5 November 2014, prepared by counsel, were identical notwithstanding that the grounds as pleaded were different in each case. Essentially, at this stage the argument was that each of the “first” applications for protection visas were invalid because an “outdated” application form (Form 866) had been used by the applicants to make the applications.
As stated above, SZUWV and SZURX filed written submissions in February 2016. Here the argument took on a different perspective. The invalidity of the “first” application was said to be because the “first” applications were made before complementary protection provisions came into effect. This was factually incorrect. The applicants handed up “supplementary” written submission dated 29 February 2016 at the final hearing “correcting” the account of the factual background.
The final hearing commenced in relation to all three applicants, with one counsel appearing for all three applications. Despite the length of time available to the applicants, the applicants’ counsel commenced their case at the final hearing conveying his “regrets” that an amended application had not been filed, nor leave sought for that to occur.
The hearing for the applicants therefore commenced with an argument that appeared to be a variation of ground three in SZUWV, but not pleaded in the other two cases. The “argument” then further developed during the course of the hearing, with the result that leave was granted for a new ground to be filed in Court by way of an amended application.
That ground is in the following terms:
“1. The Delegate made a jurisdictional error by failing to exercise jurisdiction.
a. At the time of the earlier application, the prescribed form was Form 866;
b. Form 866 did not explicitly inquire whether the Applicant specifically claimed complementary protection in light of cl.866.211(4) of Sch 2 to the Regulations;
c. It was unreasonable of Form 866 to refrain from doing so;
d. the earlier application relying on Form 866 was invalid;
e. the later application was not barred by s 48A of the Act.”
Subsequent submissions from the applicants at the hearing also sought to further develop this ground. Given the circumstances, leave was granted for the parties to file further written submissions following the hearing. The Minister did file written submissions which attempt to deal with the case, as best as it could be understood, at the conclusion of the hearing.
Notwithstanding the “leeway” already granted to the applicants, they each subsequently filed Applications in a Case (“AICs”) on 7 April 2016 (SZVFJ) and 11 April 2016 (SZURX and SZUWV) seeking to yet further amend their applications by adding a second ground to the one set out immediately above (at [13]), as well as written submissions in response to the Minister’s submissions on 7 April 2016 (SZURX and SZUWV) and 11 April 2016 (SZVFJ). On 27 May 2016, the parties attended before the Court so that the applicants could explain the basis on which they sought further leave to yet further amend the grounds of the application after the final hearing
This judgment therefore is divided between addressing the applicants’ ground of the amended applications as it stood at the final hearing, including those written submissions apparently relevant to the ground of the amended application, and subsequently, dealing with the attempt to further amend the applications.
It should also be noted that given the changes to the applicants’ arguments and grounds the agreed statements of fact filed in each case were no longer comprehensive of the matters to be considered. What follows in this judgment therefore seeks to also draw relevant matters of fact from the evidence presented by the Minister to address this insufficiency.
The evidence before the Court is as follows in each application, as at the time hearing before the Court:
1)SZURX:
i)RE1 – a copy of SZURX’s “first” application for a protection visa.
2)SZVFJ
i)RE1 – a copy of SZVFJ’s “first” application for a protection visa.
3)SZUWV:
i)The affidavit of Mr Andrew Keevers, solicitor, made on 29 February 2016, annexing a copy of SZUWV’s “first” application for a protection visa.
The applicants’ assertion of legal error is that the respective delegates in each case made jurisdictional error by failing to exercise jurisdiction. In essence, by failing to accept that the “second” applications for a protection visa in each case were not barred by s.48A of the Act because each of the “first” applications made by the applicants were invalid applications.
The applicants say they were invalid applications because the form provided for the purposes of making the “first” application (“Form 866”), and which each of the applicants used, failed to perform its statutory function. That is, because it did not specifically invite the applicants to address the complementary protection criterion. This was further explained as being because there was no specific question in the Form 866, utilised by the applicants, to the effect of asking them whether or not they applied for the protection visa on the basis of complementary protection criterion.
The applicants’ ground, as pleaded by way of the amended application at the final hearing, in essence depends on the invalidity of the “first” application said to specifically arise in the circumstances of the three cases then before the Court, because the relevant application form (“Form 866”) used to make the application “refrained” from asking the applicant to answer whether or not the relevant applicant was making a complementary protection claim. This was said to be unreasonable and, therefore, invalid.
It is important to note that the claim in relation to all three applicants is not as was in the circumstances of SZGIZ. In that case, the applicant had made the protection visa application prior to the introduction of the complementary protection provision into the Act, and the ultimate Tribunal decision also preceded that introduction.
In relation to the two applicants currently before the Court, and in the case of SZURX, the applications, on the first occasion, were all made after the introduction of the complementary protection provisions to the Act. The issue raised by the applicants, therefore, was not derived from what criterion for the protection visa was considered by the delegates and the Tribunals in each case, but the invalidity of the protection visa application form when they each first applied for protection visas.
While much was said at the Court hearing in explanation of the applicants’ case, two issues appear to have emerged. First, in what was described at the hearing as the “crux” of the applicants’ case, that the questions asked of the applicants in the Form 866 were not of sufficient specificity as to whether the applicants claimed protection on the basis of complementary protection. This was said to have led to legal unreasonableness on the part of the delegates on the subsequent (“second”) applications by failing to exercise jurisdiction in relation to the “second” applications made by each of the applicants.
This issue can be said to clearly arise from the sole ground of the amended application for which leave was granted to be filed during the hearing of these matters.
The “first” applications made by the applicants are variously in evidence before the Court (see above at [18]).
In essence, and at its highest, the applicants’ argument is that the Form 866 did not contain a specific question asking whether the applicants applied for a protection visa on the basis of complementary protection.
On the evidence, the form did not contain any such specific question. However, in my view, the issue is not whether the form asked a particular specific question, but whether the form invited each respective applicant to make claims as against both the relevant criteria for the grant of the protection visa.
The applicants’ submissions explained that the validity of the Form 866 was to be determined by having regard to the extent that the form complied with the requirements of, relevantly cl.866.211(4) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) and, to the extent that the Form 866 put each applicant in the position of satisfying the requirements of that clause.
Clause 866.211(2) and (4) of the Regulations, as at the relevant times, were in the following terms:
“866.211
…
(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.
…
(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.”
It is important to note in understanding the applicants’ argument, that cl.866.211 of the Regulations was a time of application criterion. Recognition of this is consistent with the applicants’ claim that the relevant focus must be on the time of the “first” application for the protection visa, as that is the time when it can be said the form specifically invites the question as to whether the applicant “made” an earlier application for a protection visa, including on the basis of complementary protection.
It was not disputed by the Minister, in relation to the argument advanced by the applicants at the hearing, that for the “first” application to have been a valid application it must have been made by use of the Form 866. Nor did the applicants dispute, at the hearing before the Court, that a Form 866 was used in each of the three cases before the Court in the making of the “first” application.
The applicants’ specific argument, however, was that, notwithstanding the use of the Form 866 in each case, no valid application was made because the Form 866 did not explicitly inquire whether the applicant claimed to fear significant harm on the basis of the complementary protection criterion provision, as this was set out in cl.866.211(4) of the Regulations.
It is also important to emphasise that in the current cases the amended ground as ultimately pleaded asserts unreasonableness on the part of the delegates to find that valid applications had been made on the “first” occasion because it was “unreasonable of Form 866” (particular (c)) to “not explicitly inquire whether the Applicant specifically claimed complementary protection…” (particular (b)).
As the applicants acknowledged, a similar argument was put to, and rejected, by the Court in SZUZM v Minister for Immigration [2015] FCCA 1202 (“SZUZM”) (per Judge Smith). At the hearing, the Minister urged that a similar approach should be taken by the Court in the three cases before it.
It was not put in the current cases that the relevant Form 866 in SZUZM was different to the forms used in the current cases. In that case His Honour found (SZUZM at [16] – [17]):
“[16] Before turning to the applicant’s remaining submissions in this respect I should note that I disagree with an essential factual premise in his argument, namely that the form on which his application was made did not allow for any claim relating to the new criterion to be raised. The relevant parts of the form were at questions 41 to 46:
41. I am seeking protection in Australia so that I do not have to go back to (Give name of country)
[A]: Palestine
42. Why did you leave that country?
[A]: Refer to attached statement
43. What do you fear may happen to you if you go back to that country?
[A]: Refer to attached statement
44. Who do you think may harm/mistreat you if you go back?
[A]: Refer to attached statement
45. Why do you think this will happen to you if you go back?
[A]: Refer to attached statement
46. Do you think the authorities of that country can and will protect you if you go back? If not, why not?
[A]: Refer to attached statement
Each of those questions (with the possible exception of question 45) was capable of eliciting a response that could have given rise to a claim to meet the criterion in s.36(2)(aa) of the Act.
[17] Even if the applicant had not given any response to those questions in the form at the time it had been lodged, his application would have been valid had he done so at any time prior to the decision of the delegate. There would have been, at the time of lodging the application an inchoate application completed by the supply of the further information: Nader v Minister for Immigration & Multicultural Affairs (2000) 175 ALR 548 at 560 – 561; see also Minister for Immigration & Multicultural Affairs v Li (2000) 103 FCR 486 at 501 [67].”
In the current cases the evidence before the Court relevantly reveals as follows:
1)In the case of SZUWV (see annexure A to Mr Keevers’ affidavit):
“41. I am seeking protection in Australia so that I do not have to go back to (Give name of country)
[A]: Pakistan
42. Why did you leave that country?
[A]: Refer to attached statement
43. What do you fear may happen to you if you go back to that country?
[A]: Refer to attached statement
44. Who do you think may harm/mistreat you if you go back?
[A]: Refer to attached statement
45. Why do you think this will happen to you if you go back?
[A]: Refer to attached statement
46. Do you think the authorities of that country can and will protect you if you go back? If not, why not?
[A]: Refer to attached statement”
2)In the case of SZVFJ (see RE1):
“41. I am seeking protection in Australia so that I do not have to go back to (Give name of country)
[A]: Lebanon
42. Why did you leave that country?
[A]: Refer to attached statement
43. What do you fear may happen to you if you go back to that country?
[A]: Refer to attached statement
44. Who do you think may harm/mistreat you if you go back?
[A]: Refer to attached statement
45. Why do you think this will happen to you if you go back?
[A]: Refer to attached statement
46. Do you think the authorities of that country can and will protect you if you go back? If not, why not?
[A]: Refer to attached statement
3)SZURX (see RE1):
“41. I am seeking protection in Australia so that I do not have to go back to (Give name of country)
[A]: Lebanon
42. Why did you leave that country?
[A]: Refer to attached statement
43. What do you fear may happen to you if you go back to that country?
[A]: Refer to attached statement
44. Who do you think may harm/mistreat you if you go back?
[A]: Refer to attached statement
45. Why do you think this will happen to you if you go back?
[A]: Refer to attached statement
46. Do you think the authorities of that country can and will protect you if you go back? If not, why not?
[A]: Refer to attached statement
[In each case the attached statements addressed each of these matters to varying degrees.]
The applicants submitted, in the current cases, that the circumstances are distinguishable from SZUZM. Only one matter of distinction was raised. That is, that in SZUZM the “first” application was made before the introduction of the complementary protection provision, whereas in the current cases each of the “first” applications were made after the introduction of the complementary protection provision.
I cannot see that this distinction is relevant to the applicants’ argument. That argument focuses on what is said, relevantly, should have been in the form (a specific question) as opposed to what was in the form (insufficient, or not sufficient specificity, in its relevant inquiry). The relevant point is that the form that His Honour considered in SZUZM was in its questions identical to the current form. If anything the distinction raised by the applicants now serves to emphasise that their applications for protection visas were made after the introduction of the complementary protection provision.
I cannot respectfully see that His Honour’s conclusion as expressed at [16] of SZUZM is wrong. As a matter of comity it should be followed. In any event, I am of the respectful view that it is correct.
Further, what can be fairly described as the “technical” focus of the applicants’ argument fails to focus on the plain language of cl.866.211(4) of the Regulations. The introduction of the complementary protection criterion, which preceded each of the “first” applications currently before the Court, relevantly added another criterion to those which formed the basis on which a protection visa may be granted. Subject of course to the decision maker reaching the requisite level of satisfaction pursuant to s.65 of the Act.
The applicants now rely on cl.866.211(4) of the Regulations. This provides that a criterion, which must be satisfied at the time of application for the grant of the protection visa, is that the applicant claims to be a person to whom Australia has protection obligations on the basis that there is a real risk the applicant “will suffer significant harm if returned to their home country”.
In my view, the relevant focus of cl.866.211 of the Regulations (see [30] above) is not on what questions are asked of an applicant in the relevant form, or for that matter anywhere else. The focus is on what an applicant claims. At its highest, therefore, the applicants’ complaint can only relevantly be whether the Form 866 denied them the opportunity to make their relevant claims.
In this light, the questions asked in the relevant Form 866 were capable of eliciting a response which could be seen as a claim to a real risk of suffering significant harm as that is relevant to the complementary protection criterion. Before the Court, the applicants’ counsel at one point did explain their case as being that the relevant question is not one necessarily as to whether the form complies with cl.866.211(4) of the Regulations, but the extent to which the form can be said to elicit or invite an express claim to the protection visa on the basis of complementary protection.
In that light, and given what is set out immediately above, the Form 866 was not unreasonable in the questions asked for reason that it did not ask the specific question in the terms the applicants now propose. Therefore, the delegate’s decisions on the “second” application were consequently also not unreasonable for this reason.
Although not dispositive of the issue, the relevant efficacy of the questions asked by the form can be “tested” with reference to the answers given by each of the applicants in their attached statements which they incorporated as the answers to the questions in the form by the repeated use of “refer to attached statement”.
In his statement, SZURX stated the following (see [3] of the statement of RE1 in SZURX):
“I also rely on the complementary protection provisions, as I fear suffering significant harm, namely, be subjected to torture, or cruel inhuman treatment or punishment, or degrading treatment or punishment”.
SZVFJ made claims to fear harm on the basis of religion, and made claims amongst other things which may have included a claim to cruel or inhuman treatment or punishment, degrading treatment or punishment and even torture at the hands of his family in circumstances where he could not claim protection from his home country (see statement attached to the application in RE1 in SZVFJ).
Similarly, SZUWV also claimed to fear harm on the basis of his claimed homosexual orientation. The “difficulties” he claimed that he would face on return to his country, arising from his family’s “strict” Islamic beliefs, and from the broader community, similarly could be seen as a claim to fear harm on the basis of degrading treatment. That is within the scope of a claim to fear significant harm in the context of complementary protection.
The second issue that emerged from the applicants’ arguments at the hearing before the Court did not appear to derive clearly from the ground as amended. However, the argument appeared to derive from the process relevant to the provenance of the Form 866. This had been alluded to, albeit in a different context, in the written submissions of 18 February 2016.
The context for this appeared to be as follows. Section 46(1) and s.46(2A) of the Act address the matter of the validity and invalidity of an application for a visa. In this context s.46(3) of the Act provides:
“The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application”
At the time of the making of the “first” applications, that is the relevant time for current purposes, the criteria for the making of an application for a protection visa were set out in reg.2.07 of the Regulations.
In their submissions, the applicants included the following version of reg.2.07 of the Regulations:
“2.07 Application for visa—general
(1) For sections 45 and 46 of the Act (which deal with applications for visas), if an application is required for a particular class of visa:
(a) the relevant item of Schedule 1 sets out the approved form (if any) to be completed by an applicant; and
(b) regulation 2.12C and the relevant item of Schedule 1 set out:
(i) the visa application charge (if any) payable in relation to an application; and
(ii) the components that may be applicable to a particular application for the visa; and
(c) the relevant item of Schedule 1 sets out 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.”
However, that version, although similar, was not the version of reg.2.07 of the Regulations at the time of the making of the “first” applications. The applicants’ version commenced on 1 July 2013, and post-dated each of the “first” applications. The applicable version of the reg.2.07 at the time of the making of the “first” applications is in the following terms:
“2.07 Application for visa – general
(1) For the purpose 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.”
At the relevant time, item 1401 of Schedule 1 of the Regulations specified Form 866 as the “approved” form. This contemplates an exercise of delegated legislative power to approve the form.
The argument was that the approved form had “defects” in the sense that the form did not allow for the eliciting of a specific claim as against the complementary protection criterion. That is, the form was invalid for that reason.
As stated above, before the Court the applicants’ amended ground, and oral submissions pressed the matter of unreasonableness. That is, in essence, that Form 866, in failing to elicit the specific question about complementary protection was therefore not a valid “approved” form for reason of unreasonableness.
The applicants relied on unreasonableness as was said to be explained in Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3; (2013) 249 CLR 1 (“Attorney-General (SA)”) to submit that the applicants were able to “invoke unreasonableness” in the context of an exercise of a delegated legislative power (see at [47] – [48] and [51] per French CJ):
“[47] The third respondent by his amended notice of contention asserted that the impugned provisions of By-law No 4 were ‘an unreasonable exercise’ of the by-law making power and ‘not a reasonably proportionate or proportionate exercise of the power’. Those grounds invoke criteria of invalidity which have overlapping histories and applications. They define limits on the by-law making power.
[48] A high threshold test for unreasonableness invalidating delegated legislation was set by the Privy Council in Slattery v Naylor. Their Lordships spoke of a ‘merely fantastic and capricious bye-law, such as reasonable men could not make in good faith’. That criterion did not invite judicial merits review of delegated legislation. Nor has unreasonableness ever been so regarded in this Court. As their Lordships said, a by-law would not be treated as unreasonable ‘merely because it does not contain qualifications which commend themselves to the minds of judges’. In Kruse v Johnson, Lord Russell CJ accorded a particular respect to the authority conferred on public representative bodies in making delegated legislation which would not necessarily inform consideration of validity today. However, he did not exclude from review by-laws ‘partial and unequal in their operation’ or ‘manifestly unjust’ or involving ‘such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men’.
…
[51] In Brunswick Corporation v Stewart Starke J adopted the language of the Privy Council in Slattery in distinguishing between a ‘drastic’ provision and one which was ‘so capricious and oppressive that no reasonable mind can justify it’. Williams J in the same case adopted the language of Lord Russell CJ in Kruse v Johnson, equating unreasonableness in a by-law with ‘such oppressive or gratuitous interference with the rights of those who are subject to it as could find no justification in the minds of reasonable men’.”
At the Court hearing I understood, after asking for specific clarification, that the applicants’ references to unreasonableness in their submissions, and the reference to Attorney-General (SA), was to argue that cl.866.211(4) of the Regulations requires an explicit claim of complementary protection. As the Form 866 did not elicit such an explicit claim it was, in the context, “defective” as an “approved form”. It was therefore an “invalid form” rendering the “first” applications invalid.
The notion of reasonableness, and as was expressed by the applicants’ counsel at the hearing, the “lack of proportionality”, were put to emphasise the reasonableness of what was said to be required by the Form 866 given the relevant legislative and regulatory context.
That is, that the question posed by the applicants was not whether the use of the form by the applicants resulted, by the answers that they gave, in a claim to complementary protection, but rather whether the form itself was reasonable in the sense of posing the question required of it by the legislative and regulatory scheme.
As set out above, given the evolutionary, rather than explanatory, nature of the applicants’ case, including during the course of the hearing, the parties were given leave to file written submission to confirm what was apparently argued at the hearing.
As stated above, the Minister complied with that requirement. The applicants however while complying with the requirement to file written submissions took the opportunity to expand their arguments and ultimately filed Applications in a Case, as stated above, seeking to pursue another ground (see further below). For immediate purposes I will address the applicants’ case as it concluded at the hearing and those parts of the written submissions which apply to it.
The developed “nuances” to the applicants’ argument were derived from the proposition, set out above, that to have a valid application for a protection visa, an applicant must specifically claim complementary protection. That is, the application form must specifically ask whether the applicant is making an application on the basis, relevantly, of complementary protection. The form must give the applicant the opportunity to specifically do so.
For the reasons set out above, the applicants in the current case were given the opportunity to make their applications, including on the basis of seeking to rely on the complementary protection criterion. Further, as set out above (at [43]) the focus of cl.866 of the Regulations is on what an applicant claims, not necessarily what a particular form asks of him or her.
Further, and in any event, I do not agree with the applicants’ submissions that to the extent they rely on cl.866.211(4) of the Regulations, that clause requires an application for the visa involving that criterion to be done in a particular, or specific, way.
Clause 866.211(4) of the Regulations must be read in the context in which it appears. In the relevant regulatory scheme the various criteria for a protection visa are set out at cl.866 of Schedule 2 to the Regulations. Relevantly, there are primary criteria to be met at the time of application (cl.866.21 of the Regulations), and at the time of decision (cl.866.22 of the Regulations).
Clause 866.211 of the Regulations as it was at the time when the applicants applied for protection visas was 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.”
As set out above, the essence of the applicants’ argument is that the absence of the relevant specific question in inviting, or eliciting, an answer in relation to complementary protection renders the Form 866, the means by which an application for a protection visa to have been validly made, invalid.
The actual wording of the entirety of cl.866.211 of the Regulations provides the answer to the applicants’ argument. Clause 866.211(1) of the Regulations states that at the time of application for the protection visa, only one of the following subclauses ((2) to (5)) is required to be satisfied. That is, as the Minister correctly in my view submitted, cl.866.211(4) is only one of four options available to satisfy cl.866.211(1) of the Regulations.
That is, an applicant can “successfully” apply for a protection visa so long as one of the criteria at cl.866.211 of the Regulations is satisfied.
There is nothing in the evidence before the Court to indicate, nor was it submitted on behalf of the applicants, that the applicants did not “successfully” make an application for a protection visa on the basis of cl.866.211(2) of the Regulations. That is, the application, in the context of cl.866.211 of the Regulations, was a valid application for the protection visa. The basis for the claimed invalidity was simply the absence of a specific question directed to complementary protection.
In their subsequent submissions the applicants sought to link the argument of the validity of the Form 866 and its relevance to the time of application criteria (“Criteria to be satisfied at time of application) with the question as to whether a valid application was made on the “first” occasion, to cl.866.22 of the Regulations (“Criteria to be satisfied at time of decision”). The applicants submitted that the two clauses should be read as applying to each other (as the applicants’ counsel put it, “reddendo singula singulis”), and provided a list of authorities said to be on the concept of “distributive construction”.
On this basis, therefore, the at time of application criterion (cl.866.211(4) of the Regulations) must be “fulfilled” in circumstances where a protection visa is to be granted by reference to cl.866.211(4) of the Regulations as at the time of decision. The argument is that this gives full effect to each part of both of cl.866.211 and cl.866.221 of the Regulations.
I do not agree with this submission. The Regulations make a specific distinction between the time of application and the time of decision. As is clear, an applicant may be granted a protection visa if he or she meets only one of the criteria for the grant of the protection visa. If any applicant does not satisfy the requirements for the grant on the basis of the Refugees Convention criterion, the grant may still take place on the basis of the complementary protection criterion.
It is not the case that to be granted a protection visa on the basis of satisfying the complementary protection criterion an applicant must have, at the time of application, made specific claims on that basis. The decision maker’s obligation at the time of decision extends to considering all express claims to protection or those clearly arising from the circumstances presented or a substantial, clearly articulated argument relying upon established facts (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) ALJR 1088 and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1). Those claims can be made at any time after the application is made, that is after the Form 866 is lodged, and up to the time of decision. That extends up to the time of decision of any subsequent review by the Tribunal.
In this light, I note, and respectfully agree, with Judge Smith in SZUZM (at [17]) as it applies to the current circumstances:
“Even if the applicant had not given any response to those questions in the form at the time it had been lodged, his application would have been valid had he done so at any time prior to the decision of the delegate. There would have been, at the time of lodging the application an inchoate application completed by the supply of the further information: Nader v Minister for Immigration & Multicultural Affairs (2000) 175 ALR 548 at 560 – 561; see also Minister for Immigration & Multicultural Affairs v Li (2000) 103 FCR 486 at 501.”
The applicants’ argument, if accepted, would mean that to be granted (that is at the time of decision) a protection visa on the basis of the complementary protection criterion the applicant would have had to have applied for the protection visa on specifically that basis, at the time of application.
The applicants’ argument would leave the distinction between time of application and time of decision unexplained. The Minister’s construction, which is to be preferred, recognises that what is required is a valid application which can be achieved by making the application for the protection visa on the basis of any “one” of the criteria set out at cl.866.211 of the Regulations, and then enables the grant of the protection visa, at the time of decision, on any “one” of the criteria set out at cl.866.22, even if it is a different criterion.
In this light, the Form 866 used by the applicants’ was not unreasonable in failing to express a specific question about complementary protection in circumstances where its terms were sufficient to elicit claims as against the complementary protection criterion.
The ground of the amended application in each case of SZUWV and SZVFJ is not made out. The applications should be dismissed. I will make the appropriate order.
Applications In a Case
As set out above, the applicants also sought, through their AICs to raise an additional, but different, ground to that in the amended application. An application which itself was amended with leave, during the course of the final hearing.
That proposed ground is in the following terms:
“The Delegate otherwise made a jurisdictional error by failing to exercise jurisdiction.
a. At the time of the earlier application, the version of Form 866 used by the Applicant had been approved by the Minister under reg.1.18(1) of the Migration Regulations after item 1401 of Sch 1 to the Migration Regulations took effect on 20 October 1999;
b. Item 1401 of Sch 1 to the Migration Regulations, by virtue of s 49A(1)(b) of the Acts Interpretation Act 1901 (Cth) as at 20 October 1999 (Interpretation Act) or s 14(1)(b) of the Legislation Act 2003 (Cth) (Legislation Act), was prohibited from incorporating Form 866 as it existed after item 1401 took effect. Rather, by virtue of those provisions and notwithstanding s 14(4) of the Legislation Act and s 504(2) of the Migration Act, item 1401 was restricted to incorporating Form 866 to the extent that it existed when item 1401 took effect on 20 October 1999; and
c. As a result, by virtue of s 46 of the Migration Act when read with reg. 2.07 of the Migration Regulations and notwithstanding s 25C of the Interpretation Act when read with s 13(1) of the Legislation Act, the earlier application was not invalid and the later application was not barred by s 48A of the Migration Act.”
The applicants’ proposed new ground is explained in written submissions filed without leave in relation to that matter. The applicants’ counsel subsequently explained to the Court on 27 May 2016 that this was a “wholly new” ground.
It must be noted that the applicants seek leave from the Court to further amend the already amended application with a yet newer ground. They do so at a time after the completion of the final hearing, and after the filing of written submissions made necessary by the emergence of new arguments, and a “new” ground, at the final hearing.
The applicants made no reference to the basis on which the Court could, or should, in the circumstances, grant the orders they sought. Having sought the orders to, in effect, “reopen” their cases after the final hearing and at a time when the matter became reserved for the Court’s consideration, the applicants simply assumed that they should be given the further “indulgence” they sought on the basis of what was described as a “novel” argument to be heard.
Notwithstanding the assumption made by the applicants there are a number of factors for relevant consideration.
First, s.42 of the Federal Circuit Court of Australia Act 1999 (Cth) provides that the Court must “endeavour to ensure that the proceedings are not protracted”. In Acton v Hammer [2013] FCCA 1174 the Court cited French CJ in Aon Risk Services Australia v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (“Aon Risk”) at [57] relevantly stated:
“Those paragraphs address, fairly and specifically, the obligation upon Courts to ensure that business is transacted effectively and efficiently, by reference, not only to the interests of the parties, but those of the Court and other litigants and users of the Court. In particular, French CJ, quoting the decision of Lord Griffiths observes:
The pressure on Courts caused by the great increase in litigation and the consequent necessity that, in the interests of the whole community, legal business should be conducted efficiently. The emollient effect of an order for costs as a panacea may now be consigned to the Aladdin’s cave, which Lord Reid rejected as one of the fairy tales in which we no longer believed.”
As stated above, the proposed ground was, on the submissions for the applicants, a “new” ground. The original applications made by the two remaining applicants (SZUWV and SZVFJ) were made on 6 August 2014 and 7 October 2014 respectively.
Both applications although containing different grounds were prepared by the same solicitor, Mr Adrian Joel. He has continued to represent SZUWV throughout the proceedings including in the making of the AIC.
Mr Joel continued to represent SZVFJ until 9 February 2016. On 24 February 2016 Mr Sam Issa of Firmstone and Associates filed a notice of appearance for SZVFJ. In short, other than for some few weeks in February 2016, both applicants have been legally represented by a solicitor effectively throughout the whole proceedings, including the AIC.
In submissions, the applicants appeared to dispute the Minister’s contention in his written submissions of 11 March 2016 as to the long procedural history of these proceedings and, indeed, to question why the Minister has set out this history.
While the Minister’s description of the “history” of these cases, was drafted prior to the making of the AICs, it assumed an even greater relevance to the consideration of whether the leave sought by the applicants through the AICs should be granted.
In the case of both SZUWV and SZVFJ, the Minister relied on the supplementary written submissions filed on 11 March 2016 in the matter of SZURX. I understood both written submissions for SZUWV and SZVFJ to refer to the Minister’s submissions when questioning their relevance.
It is of assistance to reproduce the Minister’s submissions in this regard ([2] – [7] of the Minister’s written submissions):
“[2] The central premise of this application in this case (and those in SZVFJ and SZUWV) is that the applicant’s first protection visa application made on 3 July 2012 was invalid. The arguments advanced in support of that proposition have undergone extensive changes since this application was commenced in 2014. The applicant initially claimed his first application was invalid because he had used an ‘outdated’ form (Form 866): see agreed facts at [9] and submissions filed on 5 November 2014 at [11].
[3] Then on 18 February 2016, the applicant filed new submissions (AS) and alleged that his first application was invalid because:
(a) it was made before the introduction of the complementary protection criteria in section 36(2)(aa) of the Migration Act 1958 (Cth) (Act) came into effect on 24 March 2012 (AS [3]); and
(b) it did not contain claims under the complementary protection criteria which is said to be a mandatory requirement for ‘success’ or ‘validity’ due to clause 866.211(4) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) at the time the application was determined (AS [25] to [26]).
[4] Those allegations were factually unsustainable for the reasons set out in the Minister’s submissions filed on 23 February 2016 (MS). Then, the day before the hearing, the applicant served further submissions dated 29 February 2016 making new claims on the same basis as one of the other proceedings heard together with these: SZUWV (SYG 2193 of 2014). The applicant’s claims then became that the Form 866 used by the applicant in his first application was not ‘capable of satisfying clause 866.211(4)’ of the Regulations and thus the earlier applicant was ‘necessarily hopeless and, therefore, invalid’ (SZUWV submissions at [25]).
[5] That claim was also fundamentally misconceived for the reasons set out in the MS at [5(b)] and [7] to [9]. It was not pressed at the hearing.
[6] Then, at the hearing on 1 March 2016, the applicant further amended his application and made another entirely new argument with respect to invalidity by claiming that the failure of Form 866 to include a specific question about whether, in effect, an applicant was expressly claiming ‘complementary protection’ was unreasonable and thus invalid.
[7] As this issue was raised for the first time at the hearing, the process by which Form 866 was approved was not in evidence nor addressed in written submissions. For the reasons that follow, the applicant’s claim remains misconceived.”
The applicants concede that “[i]t is true that there has been some shift in emphasis” in the applicants case (see written submissions in SZUWV and SZVFJ dated 7 April 2016 and filed on 7 and 11 April 2016, respectively). However, the submissions go on to say that “although the Applicants would not concede that the changes have been of the magnitude suggested by the Minister”.
I do not agree with this latter submission. The applicants have proceeded on the basis that some subsequent further expansion, or “elaboration” of what can only be described as an earlier, at best, “general” comment, can be said to result in a yet newer ground said to contain allegation of legal error. I cannot see that the Minister at the hearing would have been on notice of this “new” ground. The subsequent attempt at elaboration does not serve to provide “retrospective notice”.
Further, the applicants’ submissions ignore the procedural history of these matters prior to the involvement of counsel currently representing both applicants, and appear to overlook the actual, and substantial, content of the various iterations of the applicants’ cases since his involvement.
The written submissions filed initially on 4 November 2014 and amended on 5 November 2014 in the case of SZURX and SZUWV, and on which SZVFJ subsequently relied, were prepared by counsel. Although this was not the counsel who subsequently “took carriage” of these matters, nonetheless what remains is that the ground now proposed was not raised or even alluded to by counsel at that time.
Nor did the written submissions of 18 February 2016, or the written submissions dated 29 February 2016 handed up at the final hearing in relation to SZUWV and SZURX give rise to anything such as to say the proposed ground had some, even embryonic, exposure at that time.
As stated above, in his oral submissions of 27 May 2016, on an occasion after the final hearing, counsel for all of the applicants (including at that time SZURX) initially stated that the proposed ground, concerning the validity of the apparent ambulatory incorporation of the Form 866 in the regulations was a “wholly new” issue.
That is, despite opportunity given even as late as after the commencement of the final hearing, that is, during the final hearing, to amend the applications, that amendment made no reference to the issue sought to be raised now.
As stated above, both remaining applicants have had the benefit of legal representation throughout the period of their applications before the Court (for SZVFJ but for a short period in February 2016). They have had the benefit of two counsel. They have now come with AICs, but have provided no evidence whatsoever to explain the very long delay in raising the issue they wish to raise now. An issue they failed to raise on a number of occasions when the legal minds of their representatives were focussed on their cases.
The Rules of this Court do provide for the making of an AIC (see r.4.01 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”)). However, as is made clear in r.4.01(4) of the FCC Rules, if a person makes an AIC before final orders have been made in a proceeding, as in these cases, the AIC must be made in accordance with r.4.08 of the FCC Rules.
Relevantly, r.4.08(3) of the FCC Rules, when read with r.4.05 of the FCC Rules, requires a supporting affidavit to be filed at the same time, and served on all persons against whom the order is sought.
In the current cases this has not occurred. Further, no attempt was made by counsel to explain the failure to comply with this obligatory step. These are not cases involving unrepresented applicants where some consideration may be given to the use of r.1.06 of the FCC Rules.
The procedural history of these cases, the fact of legal representation, including counsel, who has appeared for the applicants, and prepared written submissions over some time, argues against the proposition that the interests of justice call for the dispensation with the relevant rules relating to the filing of an AIC. Nor, importantly, did counsel seek such an order from the Court.
At best, counsel sought to submit from the Bar Table in explanation for the delay in bringing the new issue before the Court, and indeed seeking to enliven it after the final hearing, that there had been a “change in counsel”.
It is the case that the original applications to the Court were said to have been prepared by a solicitor. There is nothing to show that any counsel was involved in the making of those applications. [Albeit, there was a statement made by Mr Joel from the Bar Table at the first Court date on 17 September 2014 for SZURX, that Mr Williams of counsel was “involved”.]
In SZUWV, the application was made on 6 August 2014. Written submissions were initially filed on 4 November 2014 and then on 5 November 2014, these appear to have been drafted by counsel (Mr Williams), other than the counsel currently appearing for the applicants. In SZVFJ the application was first made on 7 October 2014. No submissions were filed in November 2014. In SZURX the application was made on 10 July 2014. Submissions were filed first on 4 November 2014 and then 5 November 2014. These were not drafted by the applicants’ current counsel, but nonetheless, were drafted by counsel.
On 18 February 2016 written submissions were filed in SZURX and in SZUWV. These were drafted, and dated, 17 February 2016, by the applicants’ current counsel, who also advised at the beginning of the final hearing that he relied on these submissions in all cases, including SZVFJ.
It may be accepted, based on the filing history on the Court files, that there has been a “change” in counsel. However, this does not satisfactorily explain why the ground sought to be raised by the AICs now, could not have been raised at an earlier time, and certainly as from 17 February 2016 when the “same” counsel was involved.
I do not accept the proposition that a “change” in counsel meant the failure to raise the proposed ground of the proposed further amended application can be said to be a reasonable explanation of why that ground was not raised at an earlier, and more appropriate, time in these proceedings.
Counsel for the applicants also submitted on 27 May 2016, that the argument the applicants now sought to raise occurred to him (“hit me squarely in the face”) during the Minister’s oral arguments on 1 March 2016, at the final hearing, and that he indicated the possibility of the proposed ground emerging at that time. Further, that as a result, the applicants “foreshadowed” at the time of the hearing on 1 March 2016 their intention to bring forward this “new” ground.
I do not agree that this provides a satisfactory basis in the circumstances to support the granting of the leave the applicants’ now seek. What at best was “foreshadowed” at the final hearing was that there may be some “further issues” to which counsel may seek to refer. This is not notice of the “wholly new” ground now proposed.
The proposed “new” ground, as now “explained” by the applicants, seeks to argue that the each of the “first” applications made by the applicants for protection visas were invalid. This was different to the ground of the amended application because the “application” form employed at that time, Form 866, was prohibited from being “incorporated” in the context of the operation of item 1401 of Schedule 1 to the Regulations, by virtue of s.49A(1)(b) of the Acts Interpretation Act 1901 (Cth) or s.14(1)(b) of the Legislation Act 2003 (Cth).
In short, the argument proposed relies on the understanding of various pieces of legislation, and their relationship, and application, to the circumstances of the provenance of the Form 866 as providing a particular prohibition which renders the form, as at the relevant times, invalid.
In all, the applicants were clear in submissions on 27 May 2016 that the proposed ground was “wholly new”. At best, it was “inspired” by the Minister’s submissions on 1 March 2016. I agree with the Minister that the proposed ground, and the underlying legal basis for it, as subsequently explained by the applicants’ counsel, has emerged after the conclusion of the final hearing on 1 March 2016.
It is to be remembered that the leave granted for written submissions to be filed by both the Minister and the applicants after the final hearing was to give the Minister a fair opportunity to respond to the “latest” iteration of the applicants’ ground in the amended application, for which leave was granted to be filed during the hearing, and itself emerged during the course of that hearing and continued to evolve during the course of the final hearing.
As stated above, the underlying legal basis for that ground was expressed as being one of unreasonableness. At the conclusion of the hearing on 1 March 2016 the applicants indicated that their written submissions, while making reference to “incorporation by reference”, would still focus on the ground as ultimately pleaded at the hearing, and which was based on an assertion of “unreasonableness”. This is not the proposed ground.
To allow the applicants to proceed with the “latest” new ground would offend the requirement expressed in s.42 of the FCCA Act that in proceedings in this Court, the Court must endeavour to ensure that proceedings are not protracted.
These proceedings have already been “protracted” with the granting of leave to file, during the course of the final hearing, a “new ground” which should have been filed in the form ultimately articulated, at a much earlier time, and for which subsequent written submission were required as a matter of fairness, at least for the Minister.
The Minister was, in my view, correct to remind the Court of what the High Court said in Aon Risk which in my respectful view has application to the current circumstances (see in particular at [5] and [30] per French CJ and [102] – [103] per Gummow, Hayne, Crennan, Kiefel and Bell JJ):
“[5] In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU's statement of claim should not have been allowed. The discretion of the primary judge miscarried.
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[30] It might be thought a truism that ‘case management principles’ should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, J L Holdings cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.
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[102] The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Whilst r 21 assumes some ill-effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court's discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment.
[103] The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in J L Holdings. Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case.”
It is not necessary to consider that case in great detail. What can be respectfully applied to the current circumstances, is that an application for leave to amend the grounds of the application, raised during the course of a final hearing, let alone after a final hearing, requires a “reasonable” explanation to be given in an evidentiary context as to why the leave has been sought at such a late stage.
The applicants in this case have already had a significant indulgence given to them. As stated above, leave was granted during the course of the final hearing for them to file an amended application raising a “new” ground. This was done without any evidence in support, or to explain why that ground could not have been raised at an earlier time. As set out above, no satisfactory explanation was provided in submissions during the final hearing.
Now the applicants, again with no evidence in explanation, seek to raise a “wholly new” ground after the conclusion of the final hearing. The resources of this Court are finite and limited in dealing with a large number of applications. I agree with the Minister that it is not in the interests of the administration of justice to allow applicants, represented by solicitors since the making of their applications and assisted by counsel, to further protract these proceedings in circumstances that prejudice other applicants from having their applications heard in a timely manner. Particularly in circumstances where these applicants, who are legally represented, made no attempt to explain the “delay” in bringing their proposed ground with any evidence as to the reasons for the delay.
It is also important to note that the applicants applied for protection visas. The applications were each refused by a delegate having regard to both criteria for the grant of the visa set out at s.36(2) of the Act. They availed themselves of the opportunity of merits review before the Tribunal which also had regard to both the criteria at s.36(2) of the Act. This is made clear by the agreed statements of facts filed in each case.
Their applications to this Court were not based on any assertion of jurisdictional error by the various Tribunal decisions referable to each of them. Rather, having had the opportunities for their claims to protection to be fully tested, they chose to challenge the validity of the applications they initially made, so as to create the opportunity for a “second”, and in one case (SZVFJ) a “third” opportunity (see Agreed Statement of Facts in SZVFJ at [11] – [13]), to have these claims assessed. This is not a case where the refusal of the Applications in a Case would lead to the applicants not having their protection visa claims lawfully assessed.
The applicants, legally represented throughout these proceedings, have had, to state it “colloquially”, “a fair go”. That “fair go” must end with the refusal of the leave for amendment of the applications at the hearing. The Applications in a Case are not to be granted. I will make the appropriate orders.
I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 30 September 2016
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