SZUZM v Minister for Immigration

[2015] FCCA 1202

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUZM v MINISTER FOR IMMIGRATION [2015] FCCA 1202

Catchwords:
MIGRATION – Protection visa – second application for protection visa – application deemed invalid by a delegate of the respondent Minister’s department on the basis of s.48A of the Migration Act 1958 (“Act”) – first application made prior to operation of s.36(2)(aa) of the Act but both delegate’s decision and Tribunal’s decision considered that criterion – allegation that s.48A did not apply to him as the original application was invalid because the form on which the original application was made had become defunct – original application valid – second application invalid – application dismissed.

Legislation:

Acts Interpretation Act 1901 (Cth), s.7

Migration Act 1958 (Cth), ss.36(2)(aa), 45, 46, 47, 48A

Migration Amendment (Complementary Protection) Act 2011 (Cth)
Migration Regulations 1994 (Cth), regs.1.18(a), 2.07

Wu v Minister for Immigration & Ethnic Affairs (1996) 64 FCR 245
Nader v Minister for Immigration & Multicultural Affairs (2000) 175 ALR 548
Minister for Immigration & Multicultural Affairs v Li (2000) 103 FCR 486

Applicant: SZUZM

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 2442 of 2014

Judgment of: Judge Smith

Hearing date: 28 April 2015

Date of Last Submission: 28 April 2015

Delivered at: Sydney

Delivered on: 14 May 2015

REPRESENTATION

Counsel for the Applicant: Mr J. Williams

Solicitors for the Applicant: Adrian Joel & Co.

Counsel for the Respondents: Ms R. Francois

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2442 of 2014

SZUZM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

1. The applicant arrived in Australia from Palestine on 25 January 2012. On 13 February 2012 he lodged an application for a protection visa on the basis that he feared harm at the hands of Palestinian intelligence who had accused him of being an Israeli informer.

2. On 24 March 2012 s.36(2)(aa) was inserted into the Migration Act 1958 (“Act”) by operation of the Migration Amendment (Complementary Protection) Act 2011 (“Amending Act”). The effect of that amendment was to add an alternative criterion for the grant of a protection visa.

3. On 3 September 2012 a delegate of the respondent (“Minister”) decided to refuse to grant the applicant a protection visa. In doing so, the delegate considered both the criteria as they had existed at the time of the application as well as the additional criteria added by the Amending Act. The applicant applied to the Tribunal for review of that decision. The Tribunal affirmed the delegate’s decision on 9 December 2013. Like the delegate before it, the Tribunal considered both the original criterion as well as the additional criterion.

4. On 11 August 2014 the applicant lodged a further application for a protection visa making claims in identical terms to the original application. On 14 August 2014 the applicant was advised by a delegate of the Minister that this application was invalid because he had previously been refused a protection visa and that s.48A of the Act prevented a person in his position from making a subsequent protection visa application.

5. The applicant raises two grounds in his application. In relation to the first ground, the applicant argues that s.48A did not apply to him because his original application was invalid. The Minister accepts that, if the original application was invalid, then s.48A of the Act did not prevent the making of the second application and, by operation of s.47 of the Act he was required to consider the second application. However, he submits that the original application was valid and therefore the second application was not a valid application and there is no obligation upon him to consider it. For the reasons that follow, the Minister’s submissions are correct and the application will be dismissed.

Relevant statutory provisions

1. The central statutory provision is s.47 of the Act which requires the Minister to consider a valid application and not to consider an application that is not valid. It provides:

   47     Consideration of valid visa application

   (1)The Minister is to consider a valid application for a visa.

   (2)The requirement to consider an application for a visa continues until:

   (a)the application is withdrawn; or

   (b)the Minister grants or refuses to grant the visa; or

   (c)the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).

   (3)To avoid doubt, the Minister is not to consider an application that is not a valid application.

   (4)To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.

2. The validity of an application for a visa is determined by reference to the provisions in ss.45 and 46 of the Act and the regulations made under them. Those provisions are:

   45     Application for visa

   (1)Subject to this Act and the regulations, a non‑citizen who wants a visa must apply for a visa of a particular class.

   46     Valid visa application

   Validity – general

   (1)Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:

   (a)it is for a visa of a class specified in the application; and

   (b)it satisfies the criteria and requirements prescribed under this section; and

   (ba)subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and

   (c)any fees payable in respect of it under the regulations have been paid; and

   (d)it is not prevented by any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act:

   (i)     section 48 (visa refused or cancelled earlier);

   (ii)    section 48A (protection visa refused or cancelled earlier);

   (iii)   section 161 (criminal justice visa holders);

   (iv)   section 164D (enforcement visa holders);

   (v)     section 195 (detainee applying out of time);

   (vi)   section 501E (earlier refusal or cancellation on character grounds); and

   (e)it is not invalid under any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act:

   (i)     section 46AA (visa applications, and the grant of visas, for some Act‑based visas);

   (ii)    section 46A (visa applications by unauthorised maritime arrivals);

   (iii)   section 46B (visa applications by transitory persons);

   (iv)   section 91E or 91G (CPA and safe third countries);

   (v)     section 91K (temporary safe haven visas);

   (vi)   section 91P (non‑citizens with access to protection from third countries).

   (1A)Subject to subsection (2), an application for a visa is invalid if:

   (a)the applicant is in the migration zone; and

   (b)since last entering Australia, the applicant has held a visa subject to a condition described in paragraph 41(2)(a); and

   (c)the Minister has not waived that condition under subsection 41(2A); and

   (d)the application is for a visa of a kind that, under that condition, the applicant is not or was not entitled to be granted.

   (2)Subject to subsection (2A), an application for a visa is valid if:

   (a)it is an application for a visa of a class prescribed for the purposes of this subsection; and

   (b)under the regulations, the application is taken to have been validly made.

   Provision of personal identifiers

   (2A)  An application for a visa is invalid if:

   (a)prescribed circumstances exist; and

   (aa)the Minister has not waived the operation of this subsection in relation to the application for the visa; and

   (ab)the applicant has been required by an officer to provide one or more personal identifiers in relation to the application; and

   (b)the applicant has not complied with the requirement.

   Note: An invalid application for a visa cannot give rise to an obligation under section 65 to grant a visa: see subsection 47(3).

   …

   Prescribed criteria for validity

   (3)The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.

   (4)Without limiting subsection (3), the regulations may also prescribe:

   (a)the circumstances that must exist for an application for a visa of a specified class to be a valid application; and

   (b)how an application for a visa of a specified class must be made; and

   (c)where an application for a visa of a specified class must be made; and

   (d)where an applicant must be when an application for a visa of a specified class is made.

   (5)To avoid doubt, subsections (3) and (4) do not require criteria to be prescribed in relation to the validity of visa applications, including, without limitation, applications for visas of the following classes:

   (a)    special category visas (see section 32);

   (b)    permanent protection visas (see subsection 35A(2));

   (c)     temporary protection visas (see subsection 35A(3));

   (d)    bridging visas (see section 37);

   (e)     temporary safe haven visas (see section 37A);

   (f)maritime crew visas (see section 38B).

3. The matters prescribed for the purposes of these provisions are set out in reg.2.07 of the Migration Regulations 1994 (“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.

   Note:An item of Schedule 1 may provide that the form, place or manner for making an application is specified by the Minister in a legislative instrument made for the item under subregulation (5).

   (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.

   (5)If an item in Schedule 1 prescribes any of the following requirements by reference to a legislative instrument made under this subregulation, the Minister may, by legislative instrument, specify the requirement:

   (a)an approved form for making an application for a visa of a specified class;

   (b)the way in which an application for a visa of a specified class must be made;

   (c)the place at which an application for a visa of a specified class must be made.

   Note 1:For paragraph (b), examples of the way in which an application must be made include by the internet, orally, or by posting, faxing or emailing the application to a specified number or address.

   Note 2:Regulation 2.10 sets out where an application for a visa must be made if no location for making the application is prescribed in relation to the visa in Schedule 1.

   (6)The legislative instrument may specify different requirements for:

   (a)    different kinds of visa (however described); and

   (b)    different classes of applicant.

4. Regulation 1.18(a) provides that the Minister may, in writing, approve forms for the use in making an application for a visa.

5. Schedule 1 of the Regulations has at all material times prescribed Form 866 in respect of the making of an application for a protection visa (Class XA): cl.1401(1) of sch.2 to the Regulations.

6. As at August 2014, when the applicant made the second visa application, s.48A of the Act provided:

   48ANo further applications for protection visa after refusal or cancellation

   (1)Subject to section 48B, a non‑citizen who, while in the migration zone, has made:

   (a)an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or

   (b)applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined);

   may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non‑citizen is in the migration zone.

   (1AA)    Subject to section 48B, if:

   (a)an application for a protection visa is made on a non‑citizen’s behalf while the non‑citizen is in the migration zone; and

   (b)    the grant of the visa has been refused, whether or not:

   (i)     the application has been finally determined; or

   (ii)    the non‑citizen knew about, or understood the nature of, the application due to any mental impairment; or

   (iii)   the non‑citizen knew about, or understood the nature of, the application due to the fact that the non‑citizen was, at the time the application was made, a minor;

   the non‑citizen may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non‑citizen is in the migration zone.

   (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.

Consideration

1. The first step in the applicant’s argument is that the failure to complete an approved form in accordance with any directions on it means that the application is invalid: see reg.2.07(3). The second step is that if the first application was invalid then s.48A of the Act did not prevent the making of a further (valid) application. Stated at that level of generality, those contentions may be accepted.

2. In Wu v Minister for Immigration & Ethnic Affairs (1996) 64 FCR 245 RD Nicholson J (with whom Jenkinson J agreed) described the relevant scheme as follows (at 278-279):

   Particular features of ss 45-47 of the Migration Act relevant to a proper construction of them are: s 45(1) asserts that a non-citizen "must" apply for a visa of a particular class. Section 46 introduces the notion of validity as attaching to an application only in certain circumstances, indeed “if, and only If” certain requirements are met. One such condition is that the application is made in the way required by ss 45(2) and (3), that is as provided for in r 207. Section 47(1) confines the Minister to only considering a valid application for a visa. Section 47(3), "to avoid doubt", enacts that the Minister is not to consider an application that is not a valid application. How much plainer could Parliament have made its intention that an application in the required manner is an essential precondition to the Minister, as the relevant decision-maker, exercising the power to consider and grant a visa? By linking the concept of validity to the use of Form 866, Parliament has spelt out that the use of that Form is of such importance to the general object of the legislation in this respect that it is incapable of partial compliance; to disregard it is to imperil validity of a ministerial Act.

   …

   In my opinion, a reading of these provisions makes apparent that the only way in which a visa of a particular class can be obtained is for an application to be made for it on Form 866. Short of that there is no valid application and the Minister is enjoined from considering it.

3. However, the difficulty arises in light of the fact that, at the time the applicant lodged the first application, his visa application was a valid application within the meaning of s.47 of the Act. In particular, the form which he used to make the application had been approved by a delegate of the Minister for the purposes of applications for a protection visa.

4. The applicant accepted that fact; however, he argued, the application became invalid because the form on which it was made was defunct once the additional criterion in s.36(2)(aa) was added by operation of the Amending Act. He submitted that this was so because there was nothing in the form that allowed an applicant to raise facts which would respond to the criterion in s.36(2)(aa) and, once this criterion was added, the Minister should have changed the form to allow for this to be done.

5. 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.

1. 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].

2. Returning to the applicant’s submissions, the applicant relied upon the provisions of the Amending Act as well as s.7 of the Acts Interpretation Act 1901 (Cth).

3. The applicant placed particular reliance upon item 35 of sch.1 to the Amending Act. That item provided:

   35      Application

   The amendments made by this Schedule apply in relation to an application for a protection visa (within the meaning of the Migration Act 1958):

   (a)that is made on or after the day on which this item commences; or

   (b)that is not finally determined (within the meaning of subsection 5(9) of that Act) before the day on which this item commences.

4. The applicant argued that this provision did not authorise the Minister to waive the requirements of the Act in respect of the validity of applications. That much may be accepted. However, the point that the applicant could not resist is there is nothing in the Amending Act that either on its face or by any necessary implication affected the validity of any application that had been made prior to its introduction. Indeed, it is clear that the terms of item 35 of sch.1 to the Amending Act proceed on the basis that applications that were valid before the date of the operation of the amendment continued to be valid. If that were not the case, there would have been no work for item 35 to do at all. The purpose of that item was to enable people who had already applied for a protection visa to support that application by reference to the additional criterion. On the applicant’s case, that purpose would not be met because the Amending Act would have automatically rendered each visa application invalid.

5. The applicant also relied upon sub-s.7(2)(b) of the Acts Interpretation Act 1901. That section is inconsistent with the applicant’s argument. It provides:

   7   Effect of repeal or amendment of Act

   …

   (2)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

   …

6. In this case, the thing “duly done… under the affected Act” was the application for a protection visa lodged by the applicant on 13 February 2012. The effect then of sub-s.7(2)(b) is that the Amending Act does not affect the validity of that application.

7. For those reasons, the application lodged on 13 February 2012 was, and remained, a valid application for a visa. The applicant accepted that if that were the case, s.48A of the Act operated to prevent him from lodging a further visa and so the visa lodged in August 2014 was not a valid visa within the meaning of s.47 of the Act. In light of that concession, it is unnecessary to consider the second ground in the application.

Conclusion

1. In those circumstances, there was no obligation on the Minister to consider the second application and this application must be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date: 14 May 2015