SZVBN v Minister for Immigration
[2015] FCCA 2977
•11 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVBN & ORS v MINISTER FOR IMMIGRATION | [2015] FCCA 2977 |
| Catchwords: PRACTICE AND PROCEDURE – Identification and determination of a separate question. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) Immigration (Guardianship of Children) Act 2001 (Cth), ss.4AAA, 6, 7, 8 Immigration (Guardianship of Children) Regulations 2001 (Cth) Migration Act 1958 (Cth), ss.5, 29, 30, 31, 36, 45, 46, 46A, 46B, 47, 48, 48A, 48B, 50, 65, 98, 474, 476, 477 Migration Amendment Act 2014 (Cth) |
| Al Raied v Minister for Immigration [2001] FCA 313 Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1 AZABF v Minister for Immigration [2015] FCAFC 174 Bal v Minister for Immigration [2002] FCAFC 189 Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 Brennan v Comcare (1994) 50 FCR 555 Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378 Chen Shi Hai v Minister for Immigration (2000) 201 CLR 293 Dallikavak v Minister for Immigration (1985) 9 FCR 98 Dranichnikov v Minister for Immigration (2001) 109 FCR 397 Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51 Jaffari v Minister for Immigration (2001) 113 FCR 524 Kim v Minister for Immigration [2013] FCCA 1526 Minister for Immigration v Kim (2014) 221 FCR 523 Minister for Immigration v Li [2000] FCA 1456; (2000) 103 FCR 486 Nader v Minister for Immigration [2000] FCA 908; (2000) 101 FCR 352 Najarian v Minister for Immigration [2000] FCA 933 Octavia v Minister for Immigration [2011] FMCA 16 Odhiambo v Minister for Immigration (2002) 122 FCR 29 Ogden Industries Pty Ltd v Lucas [1970] AC 113 Re Minister for Immigration; Ex parte Applicants S134/2002 (2003) 211 CLR 441 Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 Secretary, Department of Health and Community Services v JWB and SWD (1992) 175 CLR 218 SFTB v Minister for Immigration (2003) 129 FCR 222 Soondur v Minister for Immigration (2002) 122 FCR 578 SZGIZ v Minister for Immigration (2013) 212 FCR 235 SZGJO v Minister for Immigration [2006] FCA 393 SZGME v Minister for Immigration [2008] FCAFC 91; (2008) 168 FCR 487 Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531 Thompson v Goold & Co [1910] AC 409 WACB v Minister for Immigration (2004) 79 ALJR 94 WZAOT v Minister for Immigration (2013) 211 FCR 543 X v Minister for Immigration (1999) 92 FCR 524 Yilmaz v Minister for Immigration [2000] FCA 906 |
| First Applicant: | SZVBN |
| Second Applicant: | SZVBO |
| Third Applicant: | SZVBP |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2550 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 4 November 2015 |
| Date of Last Submission: | 19 November 2015 |
| Delivered at: | Sydney |
| Delivered on: | 11 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr O Jones |
| Solicitors for the Applicant: | Adrian Joel & Co |
| Counsel for the Respondent: | Mr B Kaplan |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The applicants are granted leave to rely upon their amended application filed on 1 October 2015.
Pursuant to rule 17.02 of the Federal Circuit Court Rules 2001 (Cth), the following question is to be decided separately and before any other questions in the proceedings:
Does the requirement of knowledge of a visa application which the Full Court of the Federal Court in Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523 concluded was required by s 48(1)(b)(i) of the Migration Act 1958 (Cth) (Migration Act), in the form in which it stood prior to the commencement of the Migration Legislation Amendment Act (No 1) 2014 (Cth) (Amendment Act), applies equally to s.48A(1) of the Migration Act, in the form in which it stood prior to the commencement of the Amendment Act, in circumstances where a child who makes an application for a protection visa had previously been included, without his or her knowledge, in an application for a protection visa as a member of the family unit of his or her parent?
The answer to the question is “no”.
The application filed on 15 September 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2550 of 2014
| SZVBN |
First Applicant
SZVBO
Second Applicant
SZVBP
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This judgment relates to a separate and preliminary question identified in these proceedings pursuant to Part 17 of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules). The question identified in oral argument and now formalised by order is whether the judgment of the Full Federal Court in Minister for Immigration v Kim[1] (Kim) has any application to s.48A of the Migration Act 1958 (Cth) (Migration Act) in circumstances where a second protection visa application is made by a person who was previously included in an earlier protection visa application without their knowledge as a member of the family group of the former principal applicant. It is common ground that the question only arises in relation to the class of applications (of which the visa application in issue is one) made before amendments to s.48A to exclude the (hypothetical) application of the decision in Kim[2].
[1] (2014) 221 FCR 523
[2] Migration Legislation Amendment Act (No 1) 2014 (Cth) (Amendment Act)
The following statement of background facts is derived from the submissions of the parties.
There is before the Court an application for judicial review under s.476(1) of the Migration Act of a decision of a “delegate” of the Minister. The “decision” under review was a decision to reject as invalid under s.48A of the Migration Act an application by the applicants for a protection (Class XA) visa (protection visa) which then could not be considered because of s.47(3) of the Migration Act.
The judicial review application to this Court, which was made on 15 September 2014, fell within the time prescribed by s.477(1) of the Migration Act, being 35 days from the date of the departmental decision, which was 15 August 2014. I made directions for the conduct of the proceeding on 29 October 2014. The Minister filed a Court Book on 12 November 2014.
The third applicant in these proceedings, SZVBP, is the mother of the first and second applicants, SZVBN and SZVBO. The first and second applicants are respectively the daughter and the son of the third applicant. For convenience, I refer to the first, second and third applicants as the daughter, son and mother, respectively.
The applicants are all citizens of the Republic of Korea (South Korea)[3]. The daughter and son were born on 20 June 1998 and 2 October 2002 respectively[4]. On 7 October 2003, the applicants first arrived in Australia[5]. On 17 November 2011, the mother applied for a protection visa[6]. The daughter and son were included in the mother’s application[7], but did not make their own claims for protection[8].
[3] CB 16, 31, 38
[4] CB 5
[5] CB 49
[6] CB 15-29
[7] CB 5-14
[8] CB 30-43, 63
In a decision made on 18 April 2012, a delegate of the Minister refused to grant a protection visa to the mother[9]. That, in turn, had the effect that protection visas were not granted to the daughter and to the son[10].
[9] Court Book (CB) 44-66
[10] CB 66
On 12 August 2014, all three applicants made applications for protection visas[11]. The son and the mother were included in the daughter’s application[12]. The mother did not raise any claims of her own[13]. The son, on the other hand, did so, but his claims almost entirely mirrored those of the daughter[14].
[11] CB 67-117
[12] CB 71
[13] CB 111-117
[14] CB 102-105
The officer of the Department who rejected the application reasoned as follows[15]:
On 18 April 2012 you were refused a Protection (Class XA) visa. Under section 48A of the Act, a person who has not left Australia since they were refused a protection visa is prevented from making a subsequent protection visa application.
[15] CB 136
The officer noted that, in light of the supposed application of s.48A of the Migration Act, the children’s application would be treated as a request for the exercise by the Minister of his power under s.48B of the Migration Act to permit a subsequent protection visa application[16]. There is no evidence before the Court to indicate that the Minister decided whether to exercise in his discretion under s.48B of the Migration Act. In any event, the application for judicial review concerns the officer’s decision of 15 August 2014.
[16] CB 136
Jurisdiction
The determination dated 15 August 2014 was not a decision of a delegate of the Minister[17]. It was a determination made by a departmental officer with respect to the validity of each applicant’s protection visa application. It was an expression of an opinion as to the operation of, relevantly, s.48A of the Migration Act and does not have any legal force in itself[18]. In determining that the protection visa applications were not valid, the departmental officer was not purporting to exercise any power under the Migration Act that determines any right for the future, such as under s.65 or s.47(1) and (2) and was not a delegate of the Minister for such purposes.
[17] CB 136-138
[18] Octavia v Minister for Immigration [2011] FMCA 16 at [22]-[23] per Nicholls FM (as he then was)
The factual issue concerning the knowledge of the principal applicant of the earlier protection visa application would be the subject of a factual contest. The applicants would require leave of the Court to introduce all of the affidavit evidence proposed to be relied upon, which leave would not be opposed by the Minister. The applicants also seek leave to rely upon an amended application filed on 31 August 2015. That leave is not opposed by the Minister. I proceed on the basis that leave is granted for the applicants to rely upon that amended application.
It is common ground between the parties and the Court, and I accept, that the Court has jurisdiction to deal with the application. The departmental officer’s determination, while not an exercise of any power under the Migration Act, was a “migration decision” for the purposes of s.476(1). Although a determination as to the validity of the applicants’ protection visa applications, it had the effect that the departmental officer refused to consider those applications. That was a “decision” as understood in the definition of “privative clause decision” in s.474(2) because it was a refusal to do a certain act[19]. Given the command in s.47(3), in one sense the departmental officer’s refusal to consider the visa applications was a decision that took place “under” the Migration Act.
[19] Section 474(3)(g)
Alternatively, it could be said, on the applicants’ case, that the departmental officer’s refusal to consider the applicants’ visa applications was a decision purportedly made under the Migration Act that would have been a privative clause decision had the officer not failed to exercise jurisdiction and considered those applications as required by s.47(1). On that view, the determination could be characterised as a purported privative clause decision[20].
[20] Section 5E(1)(a)
Application for judicial review
The amended application contains a single ground as follows:
1.The Delegate’s decision of 15 August 2014 made a jurisdictional error by failing to exercise jurisdiction.
Particulars
a.The Delegate considered the Second and Third Applicant’s application not to be valid.
b. The basis for invalidity identified by the Delegate was s 48A of the Migration Act 1958 (Cth) (Act).
c. The Delegate was wrong to invoke s 48A of the Act which, in accordance with the judgment of the Full Federal Court in Minister for Immigration and Border Protection v Kim (2014) 221 FCR 223 (Kim), did not apply on the ground that the Third Applicant was unaware of the prior application of the First Applicant of 17 November 2011.
d. The amendment to insert subsection (1AA) of s 48A by item 3 of Sch 1 to the Migration Legislation Amendment Act (No 1) 2014 (Cth), No 106 of 2014 (2014 Act) does not cure the Delegate’s jurisdictional error as under item 6(3)(a) of Sch 1 to the 2014 Act the amendment does not apply to the Second and Third Applicant’s application, which was made on 12 August 2014, prior to the commencement day of the amendment on 25 September 2014.
Consideration of the question
The applicant’s contentions
Section 48A of the Migration Act, as it stood at the time of the officer’s decision of 15 August 2014, provided:
(1)Subject to section 48B, a non‑citizen who, while in the migration zone, has made:
(a)an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or
(b)applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined);
may not make a further application for a protection visa while in the migration zone.
(1A) For the purposes of this section, a non‑citizen who:
(a)has been removed from the migration zone under section 198; and
(b)is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d) or (e);
is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a).
Note: Paragraphs 42(2A)(d) and (e) cover limited situations where people are returned to Australia despite their removal under section 198.
(1B)Subject to section 48B, a non‑citizen in the migration zone who held a protection visa that was cancelled may not make a further application for a protection visa while in the migration zone.
(1C)Subsections (1) and (1B) apply in relation to a non‑citizen regardless of any of the following:
(a)the grounds on which an application would be made or the criteria which the non‑citizen would claim to satisfy;
(b)whether the grounds on which an application would be made or the criteria which the non‑citizen would claim to satisfy existed earlier;
(c)the grounds on which an earlier application was made or the criteria which the non‑citizen earlier claimed to satisfy;
(d)the grounds on which a cancelled protection visa was granted or the criteria the non‑citizen satisfied for the grant of that visa.
(2) In this section:
application for a protection visa includes:
(aa)an application for a visa that, under this Act or the regulations as in force at any time, is or was a visa of the class known as protection visas; and
(a)an application for a visa, or entry permit (within the meaning of this Act as in force immediately before 1 September 1994), a criterion for which is that the applicant is a non‑citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol; and
(b)an application for a decision that a non‑citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; and
(c)an application covered by paragraph (a) or (b) that is also covered by section 39 of the Migration Reform Act 1992.
The applicant contends that, in order to understand the application of s.48A of the Migration Act, it is necessary to have regard to a similar provision concerning applications for visas other than protection visas: s.48. That section provided, at the time of the officer’s decision of 15 August 2014:
(1) A non‑citizen in the migration zone who:
(a)does not hold a substantive visa; and
(b)either:
(i) after last entering Australia, was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non‑citizen had applied (whether or not the application has been finally determined); or
(ii) held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class.
(2)For the purposes of this section (which applies only in respect of applications made while a non‑citizen is in the migration zone), 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.
(3)For the purposes of this section (which applies only in respect of applications made while a non‑citizen is in the migration zone), a non‑citizen who, while holding a bridging visa, leaves and re‑enters the migration zone is taken to have been continuously in the migration zone despite that travel.
Section 48 was, in this form, the subject of interpretation by the Full Court of the Federal Court, constituted by Yates, Robertson and Wigney JJ, in Kim[21]. In Kim, the Full Court held that, for a visa application to be invalid under s.48, the non-citizen must have had knowledge of the prior application which was refused.
[21] (2014) 221 FCR 523
The Full Court reasoned as follows:
a)the question of whether an application for a visa is valid for the purposes of the Migration Act is an objective question[22];
b)a person who has made an application for a visa that is valid is entitled to mandamus to require the Minister to consider the application[23];
c)it is not sufficient, of itself, that a person was party to an application for a visa in order for the person to have had a prior application refused within the meaning of s.48 of the Migration Act[24];
d)the prior application must be one of which the non-citizen had knowledge[25];
e)the mere fact that the non-citizen was a minor at the time of the prior application does not necessarily mean that the non-citizen lacked the requisite knowledge[26]; and
f)where there is appropriate affidavit evidence that the non-citizen lacked the requisite knowledge of the prior application, s.48 of the Migration Act will not apply[27].
[22] at 528 [25]
[23] at 528 [27]
[24] at 529 [33]-[36]
[25] at 529 [37]
[26] at 529 [39]
[27] at 529-530 [40]
The applicant submits that Kim is equally applicable to s.48A of the Migration Act, as it stood at the time of the officer’s decision of 15 August 2014. Section 48A of the Migration Act is said to be a “companion” provision directed, for applications for protection visas, to the same circumstances as s.48 of the Migration Act. There is “no appreciable difference” in the terms or context of s.48A so as to prevent Kim from applying.
It follows, in the applicant’s submission, that s.48A, at the relevant time, required the non-citizen to have knowledge of the prior application. In the presence of appropriate affidavit evidence that the non-citizen lacked that knowledge, it would be established that s.48A did not apply. Mandamus would lie to compel the Minister to consider the further application. These circumstances are said to arise in the present case but need not be tested for the purpose of dealing with the separate question.
In Kim, the Full Court made the following observation[28]:
We were not taken to any provision in the legislation which deemed an application of which the non-citizen did not have knowledge to have been made by that non-citizen either for the purposes of s 48 or more generally.
[28] at [38]
Not long after the Full Court delivered its judgment, Parliament amended ss.48 and 48A of the Migration Act to insert a provision of the kind contemplated by the Full Court. The amendments for both provisions were in materially identical terms. Relevantly for present purposes, s.48(1AA) of the Migration Act was inserted by item 3 of Schedule 1 to the Amendment Act and provided:
(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
The application of the amendment was provided for by item 6(3) of Schedule 1 to the Amendment Act, which provided:
(3) The amendment made by item 3 of this Schedule applies in relation to:
(a) a decision to refuse to grant a protection visa to a non-citizen that is made before the day this item commences, if the further application for a protection visa mentioned in subsection 48A(1AA) of the Migration Act 1958 (as inserted by that item) is made by or on behalf of the non-citizen on or after that day; or
(b) a decision to refuse to grant a protection visa to a non-citizen that is made on or after the day this item commences, regardless of when the application for the visa to which the decision relates was made.
Item 3 commenced the day after the Amendment Act received the Royal Assent. The Royal Assent was given on 24 September 2014, with the result that item 3 commenced on 25 September 2014. Item 6(3)(a) is the relevant application provision, as the prior application of which the daughter and son were allegedly unaware was made on 16 November 2011 and there was a decision to refuse to grant the protection visa on 18 April 2012. However, the balance of item 6(3)(a) is not satisfied, as the further application was made on 8 August 2014, which is still before the commencement day of 25 September 2014.
In short, in the context of the present case, the daughter and son are left unaffected by s.48(1AA) of the Migration Act. The reversal of Kim does not relevantly operate and the applicants claim the relief sought in their judicial review application.
The Minister’s contentions
Properly construed, s.48A is not affected by Kim (amended response, [1] and [2])
The Minister is empowered, under s.29(1) of the Migration Act, to grant to a non-citizen a visa to travel to and enter, and/or to remain in, Australia. The holder of a visa may remain in Australia indefinitely or temporarily[29].
[29] Subsections 30(1), (2)
Subsection 31(1) empowers the establishment of prescribed classes of visa, that is, prescribed by the Regulations. At all material times, s.31(2) provided that, in addition to the prescribed classes, there was to be a class of visa provided for by, relevantly, s.36. Subsection 31(3) provides that the Migration Regulations 1994 (Cth) (Regulations) may prescribe criteria for a visa or visas of a specified class, including the class of visa provided for by s.36.
A decision to grant, or to refuse to grant, a visa under s.65(1) can only occur after the Minister considers an “application for a visa”. The Migration Act makes extensive provision in Subdivision AA of Division 3 of Part 2 in relation to the making of visa applications. That subdivision begins with the requirement, in s.45(1), that a non-citizen who wants a visa “must apply for a visa of a particular class”. There then follow provisions in relation to the “validity” of visa applications. This includes ss.46 and regulations made thereunder, 46A-46B and 48-48A. There is an express obligation on the Minister under s.47(1) to consider a “valid application for a visa”. Subsection 47(3) imposes on the Minister an obligation not to consider an application for a visa that is not valid.
Although, in some provisions in the Migration Act, the word “application” refers to an application form, generally in the context of the Migration Act (and, in particular, in ss.45 and 46) it denotes a process of application that includes lodgement of a form and compliance with the other requirements for a valid application[30]. However, none of these provisions creates, or recognises, any distinction between a visa application made “by” a non-citizen and one made on his or her behalf. It is evident from s.45(1), and at least implicit in ss.46A and 46B, that the scheme of the Migration Act recognises only a visa application “made by” the person to whom the visa is proposed to be granted.
[30] Nader v Minister for Immigration (2000) 101 FCR 352 at 365 [54] per Hill J; Minister for Immigration v Li (2000) 103 FCR 486 at 503 [76] per Ryan, Sackville and Emmett JJ
As at 12 August 2014, s.48A provided relevantly:
No further applications for protection visa after refusal or cancellation
(1) Subject to section 48B, a non-citizen who, while in the migration zone, has made:
(a) an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined) …
…
may not make a further application for a protection visa while in the migration zone.
…
(1C) Subsectio[n] (1) … appl[ies] 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;
…
(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 …
…
The effect of s.48A(1) is ameliorated by s.48B(1), which empowers the Minister, if he or she thinks that it is in the public interest to do so, personally to determine that s.48A does not apply to prevent a protection visa application being made by a particular person. The Minister is not, however, under a duty to consider whether to exercise that power, even if requested to do so[31].
[31] Section 48B(6)
In the context of Subdivision AA of Division 3 of Part 2 of the Migration Act, the reference in s.48A(1)(a) to the non-citizen having “made” an application for a protection visa conveys no more than that the non-citizen was the person “by” whom, for the purposes of Subdivision AA, an earlier, valid application is taken to have been made. The text of s.48A does not draw on any distinction in the Migration Act between applications made in person and those made by agents; nor, read in context, does it create such a distinction. Indeed, there is no such distinction. Section 98 of the Migration Act, for example, illustrates this point. It provides that a non-citizen who does not fill in his or her visa application form “is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.” If a “non-citizen” (the definition of which is broad enough to include a child)[32] were taken to have filled in his or her application form because their parent did so on their behalf, it is, then, a short step to take to say that the child has made a visa application, subject to the validity criteria in s.46 and regulations made thereunder being met.
[32] Al Raied v Minister for Immigration [2001] FCA 313 at [36] per Moore, Mathews and Mansfield JJ
At common law, “[c]hildren are presumed to be incompetent at birth and gradually to acquire legal competence for various purposes at different stages of their development until they reach the age of majority (eighteen), in which case they are presumed to have full legal capacity.”[33] A child’s capacity will vary “according to the gravity of the particular matter and the maturity and understanding of that child.”[34] A parent has the power to make a decision on behalf of their child provided that the child does not have the competence to make that decision[35]. Whether the child has competence “turns upon the attainment of the child of sufficient understanding and intelligence to understand fully what is proposed.”[36] In the migration context, this means that the authority to make an immigration decision in relation to an infant child will be vested in the child’s parents[37], such authority diminishing as the child’s legal competence emerges and ending when the child has sufficient understanding or intelligence to understand fully what is proposed[38].
[33] Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 at 40 (Re Woolley) [102] per McHugh J
[34] Re Woolley at 40 [102] per McHugh J
[35] Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at 235-236 per Mason CJ, Dawson, Toohey and Gaudron JJ, 278 per Brennan J (as his Honour then was), 289, 293-294 per Deane J, 315 per McHugh J; Re Woolley at 40 [103] per McHugh J, 56 [153] per Gummow J
[36] Re Woolley at 56 [154] per Gummow J. See also at 40 [103] per McHugh J
[37] Re Woolley at 41 [104] per McHugh J, 56-57 [155]-[156] per Gummow J
[38] Secretary, Department of Health and Community Services v JWB (Marion’s Case) (1992) 175 CLR 218 at 237-239 per Mason CJ, Dawson, Toohey and Gaudron JJ
In Al Raied v Minister for Immigration[39], the Full Federal Court observed, at [39], that the Migration Act and the Regulations:
… do not appear to provide a cohesive and comprehensive scheme which makes clear the position of children, and an infant in particular, to apply for a protection visa in their own right or be added to an application of a parent and the position of the child at the various stages of administrative decision making and review.
[39] [2001] FCA 313
That statement was as accurate a reflection of the Migration Act and the Regulations as they pertained to children as at 2001 as it is now. The consequence of this is that those provisions in the Migration Act and Regulations that deal with the making of visa applications must be understood as assuming the ordinary operation of the common law principles discussed above[40]. Thus, an application in the name of a child, formulated by, or on behalf of, his or her parent, and signed by, or on behalf of, the child, will be a valid application which is to be treated as having been made by the child: the Migration Act and the Regulations treat the child as a visa applicant himself or herself. In Chen Shi Hai v Minister for Immigration[41], for example, there was no suggestion by the High Court that the (primary) applicant, who was an infant child, had not made a valid protection visa application. In Re Minister for Immigration; Ex parte Applicants S134/2002[42], there was no suggestion by the High Court that valid protection visa applications had not been made by the secondary applicants, who were children and on whose behalf the primary applicant had made their applications. In both cases, the children had “made” applications for protection visas.
[40] Justices Cowdroy and Barker so held in SZLSM v Minister for Immigration (2009) 176 FCR 539 at 544 [24]-[26] and WZAOT v Minister for Immigration (2013) 211 FCR 543 at 556 [97], respectively
[41] (2000) 201 CLR 293
[42] (2003) 211 CLR 441
Regulations have been made consistently with this understanding. For example, if, after making a visa application, a parent submits to the Minister a request to have his or her dependent child added to their application, the child is taken to have made an application for the same visa class[43]. Further, item 1401(3)(c) of Schedule 1 to the Regulations provides that an application by a person claiming to be a member of the family unit of a person who is an applicant for a protection visa may be made at the same time and place as, and combined with, the latter’s application.
[43] Regulation 2.08B(1)(e)
The Minister submits that, in so far as the text of s.48A is concerned, nothing in that provision suggests that a non-citizen child must have knowledge of his or her visa application before he or she can be said to have “made … an application for a protection visa”. On the other hand, s.48(1)(b)(i), in the form in which it stood prior to the commencement of Schedule 1 to the Amendment Act, applied to a non-citizen who was refused a visa “for which the non-citizen had applied”. The language used in these provisions is not identical. Section 48 is, as the Full Federal Court said in Kim at 529 [36], “directed more to the person making the application” as opposed to “an application validly made” [emphasis in original]. However, there is no reason to doubt that s.48A refers to a visa application validly made. Unlike s.48(1)(b)(i), which operates by reference to a characteristic of the non-citizen purportedly applying for a visa, the chapeau to s.48A(1) uses the word “made” and does not refer to the non-citizen, himself or herself, having “applied” (which connotes active steps being taken by the non-citizen personally) for a visa. As to the requirement that s.48A is engaged if a valid visa application has been made, the Minister relies upon Black CJ and Allsop J’s (as his Honour then was) construction of that provision in SZGME v Minister for Immigration[44].
[44] (2008) 168 FCR 487 at 490-493 [4], [7]-[14]
The Minister submits that, even if it could be said that the two provisions use the same language (which the Minister does not concede), any presumption that words are used in an Act consistently can easily be rebutted in this case, as ss.48 and 48A were, as discussed below, enacted at different times.
The fact that Kim concerned a provision using similar, but not identical, language with a similar purpose does not relieve the Court of its task to construe the words in s.48A, read in context. It is the wrong approach to statutory construction to say, as the applicants do, that, because Kim dealt with a similar provision, the principles there enunciated apply equally to s.48A. As Sackville J (with whom Whitlam J and Mansfield J agreed) said in Jacara Pty Ltd v Perpetual Trustees WA Ltd[45]:
[t]he statutory language provides the standard that is to be applied and judicial statements as to the construction of the legislation cannot supplant that language.
[45] (2000) 106 FCR 51 at 69 [74]. See also Ogden Industries Pty Ltd v Lucas [1970] AC 113 at 127 per Lord Upjohn; Brennan v Comcare (1994) 50 FCR 555 at 572-573 per Gummow J
The Minister contends that the applicants’ construction of s.48A requires the Court to read words into that provision—a step that may be taken only in the face of “clear necessity”[46] or if the more purposive, three-step test enunciated by McHugh JA (as his Honour then was) in Bermingham v Corrective Services Commission of New South Wales[47] can be satisfied. On either view, there is no warrant for reading into s.48A a requirement that a visa applicant must have knowledge of his or her application. Such a requirement would squarely undermine the purpose of s.48A, which is discussed below. It would also result in a modified meaning being given to s.48A that is not consistent with the language in fact used in that provision[48].
[46] Thompson v Goold & Co [1910] AC 409 at 420 per Lord Mersey; Dallikavak v Minister for Immigration (1985) 9 FCR 98 at 103 per Northrop and Pincus JJ
[47] (1988) 15 NSWLR 292 at 302
[48] Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531 at 548 [38] per French CJ, Crennan and Bell JJ
The requirement for “knowledge” appears to have been implied in s.48 by the Full Federal Court in Kim as a result of a perception that it is unsatisfactory for a person to suffer negative consequences from a failed visa application under that provision if he or she played no part in the decision to make that application. The applicants are urging this Court to construe s.48A in the same way with this concern in mind. However, leaving aside the point that such a construction does not respond adequately to this concern (in that s.48A would apply to the daughter and the son if they had known about the earlier visa application and asked their mother not to make it on their behalf), for the Court to reason in this way would result in it making the error identified in Australian Education Union v Department of Education and Children’s Services[49] and Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross[50].
[49] (2012) 248 CLR 1 at 14 [28] per French CJ, Hayne, Kiefel and Bell JJ
[50] (2012) 248 CLR 378 at 390 [26] per French CJ and Hayne J
Further, the Minister submits that the applicants’ construction of s.48A and introduction of an indeterminate knowledge criterion raises more questions than it answers. Must the visa applicant actually be aware of the application having been made? If so, must the applicant also have a sufficient degree of maturity at the relevant time to understand the general nature of what was being done? If so, where (and how) is the line to be drawn? What level of detail of the application must the visa applicant be shown to have known? Is constructive knowledge sufficient? Again, if so, where (and how) is the line to be drawn? How would the knowledge test apply in respect of an infant child? Could a parent of a child apply for a visa on the child’s behalf repeatedly, for years, until the child becomes aware that an application has been made on his or her behalf? How would the test be applied to a child who suffers from an intellectual disability? Could a spouse of a primary applicant who is added as a member of the primary applicant’s family unit also be affected? These questions need to be answered if the operation of s.48A is to be modified in the manner for which the applicants contend. If they cannot be answered, the applicants’ interpretation of s.48A ought not to be adopted.
Still further, the Minister submits that the context of s.48A cannot be overlooked. The applicants’ submission that “[t]here is no appreciable difference in the … context of s.48A so as to prevent Kim from applying”, is said to be incorrect. As against s.48, s.48A is a different provision, with a different history, enacted at a different time [51], and set in a different context.
[51] Section 48 was originally enacted as s 11T and was introduced by s 6 of the Migration Legislation Amendment Act 1989 (Cth): see Kim at 530 [43]
Section 48A was introduced some six years after s.48 by the Migration Legislation Amendment Act (No 6) 1995 (Cth). The Supplementary Explanatory Memorandum to the Migration Legislation Amendment Bill (No 3) 1994 (Cth) said the following with respect to the provision[52]:
Proposed new section 48A provides that a non-citizen, while he or she remains in the migration zone, who has made an application or applications for protection visas which have been refused, may not make a further application for a protection visa. This provision applies even if a non-citizen’s application for a protection visa has not been finally determined (that is, if, for example, it is being reviewed by the RRT). An application for a protection visa, for the purposes of this proposed section, includes any application by a person for refugee status or for a visa or entry permit in existence before or after 1 September 1994, a criterion for which is refugee status. Dependents of such persons are also included in this definition. [Emphasis added.]
[52] Supplementary Explanatory Memorandum to the Migration Legislation Amendment Bill (No 3) 1994 (Cth) at 3
From this passage, it can comfortably be said that the stated intention of the legislature was, relevantly, that a dependant of a protection visa applicant, that is, a person included in the application as a member of his or her family unit, would also be subject to the bar in s.48A.
Nevertheless, that is not how s.48A was construed by the Full Federal Court in Dranichnikov v Minister for Immigration.[53] In that case, the appellant had been included in her husband’s protection visa application as a member of his family unit. The application was refused. Later, she applied for a protection visa in her own right, but a departmental officer determined that her application was invalid as she was caught by the bar in s.48A(1).
[53] (2001) 109 FCR 397
Justices Lee, Finn and Merkel held that the inclusion of a person as a member of the family unit of a protection visa applicant was not, itself, the making of an application by that person for the purposes of s.48A. It followed, therefore, that the appellant was not precluded from making a protection visa application as a primary applicant. Their Honours’ judgment primarily turned upon an analysis of s.36(2) of the Migration Act (which then did not contain the current subparagraph (b)), the definition of “application for a protection visa” in s.48A(2) and the terms of clauses 866.211 and 866.221 in Schedule 2 to the Regulations[54].
[54] Dranichnikov v Minister for Immigration (2001) 109 FCR 397 at 401-402 [13], [16], 403 [23]-[24]
Following Dranichnikov, ss.36(2) and 48A(2) were amended by the Migration Legislation Amendment Act (No 6) 2001 (Cth). The former relevantly made it a criterion (in subparagraph (b)) for a protection visa that an applicant be a member of the same family unit as a non-citizen to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (Refugees Convention)[55]. The latter inserted new subparagraphs (aa) and (ab) into the definition of “application for a protection visa”, as follows:
(aa) an application for a visa, a criterion for which is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
(ab) an application for a visa, a criterion for which is that the applicant is a non-citizen in Australia who is the spouse or a dependant of a non-citizen in Australia:
(i) to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; and
(ii) who holds a protection visa …
[55] The “Refugees Convention” is a reference to the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951. The “Refugees Protocol” is a reference to the Protocol Relating to the Status of Refugees done at New York on 31 January 1967. See s.5(1) of the Migration Act
The Explanatory Memorandum to the Migration Legislation Amendment Bill (No 6) 2001 (Cth) provided the following with respect to the amendments to s.48A (at [7], [15]):
7. The amendments in the Bill will:
…
* extend the bar in section 48A against a further application for a protection visa. This will make it clear that the s 48A bar applies to all protection visa applicants, irrespective of whether they have sought the visa because of personal claims for refugee protection or as a family member of such a person. This will prevent members of families pursuing claims for protection one after the other – dragging on resolution of their status for years …
…
15. These changes make clear that the existing section 48A bar on making further protection visa applications applies to unsuccessful protection visa applicants where the application relied on the grounds that the applicant was the spouse or dependant of a person who is owed protection obligations under the Refugees Convention. This change is necessary to prevent misuse of the protection visa process by family groups wishing to prolong their stay in Australia by lodging protection applications serially, each member taking turns to advance claims for protection while the others apply as family members. … [Emphasis added]
The Minister notes that these amendments were enacted so as to avoid cases of the kind that is presently before this Court.
Dranichnikov was followed by a majority of the Full Federal Court in Soondur v Minister for Immigration[56]. In that case, the primary applicant had included in both protection visa applications her two infant children as members of her family unit. A departmental officer had determined that each applicant’s second protection visa application was invalid by reason of s.46(1)(d), as s.48A operated to prevent each from being made. A challenge to that determination failed in the Federal Court. By the time that the appeal came on for hearing, only the second appellant (the primary applicant’s older child) remained a party to the proceedings.
[56] (2002) 122 FCR 578
In separate judgments, Gray J and Goldberg J considered that the officer’s determination with respect to the second appellant was incorrect, for the reasons given in Dranichnikov[57].
[57] Soondur v Minister for Immigration (2002) 122 FCR 578 at 589-590 [33]-[34] per Gray J, 604-605 [109], [114] per Goldberg J
From 590-591 [35]-[38], Gray J made some remarks, in obiter, as to a child’s capacity to make a visa application. Relevantly, his Honour said:
a)An act generally only has legal effect “if the mind of the person performing it accompanies its performance.” Thus, “[t]he making of a purported application by a person who lacks capacity to make such an application will not be regarded as an application”[58].
b)Parts B and D of Form 866 contain instructions to the effect that if an applicant is under the age of 18 or lacks legal authority to sign on their own behalf, a parent or guardian must do so on their behalf. Those instructions reveal that “want of full legal capacity … is seen as relevant to the making of an application for a protection visa”[59].
c)It is necessary to inquire as to whether a particular child applicant “in fact had capacity (in the sense of sufficient understanding of the nature of the act involved) to make an application, at the time an application was made”[60].
[58] at 590 [35]
[59] at 590 [35]-[37]
[60] at 590 [38]. See also at 591 [38]
Given that the question whether a person has made a valid application for a visa is an objective one for a reviewing court in the event that there is a controversy, and not a matter to be determined administratively, as the Full Federal Court held in Kim at 528-529 [24]-[29], what Gray J said at 590-591 [38] should not be taken to suggest that departmental officers are under a statutory obligation to inquire as to a child’s capacity to make a visa application and to invite and consider evidence and submissions as to that question. Judge Cameron appeared to reason in that way in Kim v Minister for Immigration[61], but his Honour’s reasoning was not accepted on appeal[62]. In so far as Gray J reasoned in the same way at 591 [40], the Minister submits that his Honour’s obiter remarks are inconsistent with the views of three judges in Kim and should not be followed. In any event, the applicants in this case are not making any suggestion that the departmental officer made a jurisdictional error by failing to conduct certain inquiries.
[61] [2013] FCCA 1526
[62] at 528-529 [27], [29]
Importantly, no member of the Full Federal Court in Soondur held that a minor on whose behalf a visa application is made by a family member and refused by the Minister must have knowledge of the earlier visa application before it can be said that he or she “has made an application for a protection visa”, as understood in s.48A(1)(a). On the contrary, Gray J recognised, at 590-591 [35]-[38], that a visa application may well be made by a child’s parent where the child lacks capacity to do so himself or herself. His Honour did not say that the child would not have made a valid visa application in those circumstances nor that he or she would not subsequently be caught by the bar in s.48A.
Section 48A was not amended in any material way until 28 May 2014, upon the commencement of Schedule 2 to the Amendment Act. The amendments to s.48A introduced by that Act were intended to address the Full Federal Court’s judgment in SZGIZ v Minister for Immigration[63]. The effect of that judgment was that s.48A did not operate to prevent a person from making an application for a protection visa based on a particular criterion where an earlier application for a protection visa that had been made and refused was based on a different criterion. In the Explanatory Memorandum to the Migration Amendment Bill 2013 (Cth), it was said that SZGIZ was “contrary to the policy intention of section 48A”, which was said to be that “a non-citizen should not be able to make a further protection visa application in the migration zone after a previous protection visa application has been refused …, irrespective of the grounds on which their earlier protection visa application was refused …”.[64]
[63] (2013) 212 FCR 235
[64] Explanatory Memorandum to the Migration Amendment Bill 2013 (Cth) at 2
Attached to the Explanatory Memorandum was a Statement of Compatibility with Human Rights prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth). That statement said the following with respect to the purpose of s.48A[65]:
The original policy intention in relation to section 48A was to prohibit the making of further protection visa applications by persons who have already applied for protection and had their application assessed and refused. To ensure section 48A can operate consistently with this original policy intention, it is proposed that the Migration Act be amended to clarify and put this beyond doubt.
… Persons who were refused as members of another person’s family unit (whether before or after 24 March 2012) and who did not raise their own protection claims at the time, will also be prevented from making a further protection visa application relying on their own protection claims. [emphasis added]
[65] Explanatory Memorandum to the Migration Amendment Bill 2013 (Cth), Attachment A at 6
The Minister submits that there are three further contextual matters that strongly suggest that the construction of s.48A is not to be governed by the meaning given to s.48.
First, unlike s.48A, s.48 is a general provision intended to prevent an unsuccessful visa applicant prolonging his or her stay in Australia by making successive applications for visas of the same or different classes, subject to exceptions that may be created by the Regulations. On the other hand, s.48A is more specifically directed at the fulfilment of Australia’s obligation under the Refugees Convention, and other relevant international instruments, and is intended to ensure that, in general, the Minister is only required to consider a person’s claims for protection once. The Full Federal Court’s judgment in SZGIZ is consistent with that understanding, as it sought to protect the right of a non-citizen to raise, and have considered, claims for protection that had not previously been raised.
Secondly, unlike s.48, s.48A is part of a scheme of provisions which includes the Minister’s non-compellable discretion in s.48B to “lift the bar” and the limit in s.50 on information required to be considered in a repeat protection visa application. These differences in scope and purpose, and the express provision for the effect of s.48A to be ameliorated at the discretion of the Minister, are said to be strong indicators that, despite the similarity of language, s.48A is to be understood as barring repeat protection visa applications even if, at the time of the first application, the applicant was an infant child whose claims were advanced by his or her parents.
Thirdly, ss.46A and 46B, which use similar language to s.48A and are directed only at the legal status of the visa applicant, weigh against any argument that the construction given to s.48(1)(b)(i) controls the meaning of s.48A(1).
The Minister submits that, for these reasons, s.48A should be construed so as to prevent a non-citizen from making a repeat protection visa application in the migration zone where he or she had previously made a valid protection visa application in the migration zone that had been refused. It should not be construed in such a way that the non-citizen must have knowledge of his or her visa application before it can be said that he or she has “made” that application.
If the Court were to adopt the Minister’s construction of s.48A, it would follow that each of the first, second and third applicants did not make valid protection visa applications on 12 August 2014, by reason of s.46(1)(d).
The Minister formally notes the applicants’ submissions that the amendments to s.48A by the Amendment Act may in some way be used to construe that provision as it stood as at 12 August 2014. In so far as the applicants so contend, the Minister submits that it is not a correct approach to statutory construction to say that, because s.48A was amended after Kim, that provision in its current form must be taken to require knowledge on the part of a visa applicant. Nor would the enactment of the amendments to s.48A provide a proper foundation for such an inference about the construction of previous versions of that provision, including that which is under consideration in the present case.
Resolution of the question
In my opinion, the answer to the question identified should be “no”. The decision of the Full Federal Court in Kim concerning the operation of s.48 of the Migration Act did not similarly qualify the operation of s.48A of the Migration Act, as it stood at the relevant time.
The two sections serve somewhat different purposes and have a different legislative history. Section 48 is a qualified permission applying generally with a focus on the applicant for the relevant visa. Section 48A is a general prohibition, limited to protection visa applications, ameliorated by the Ministerial discretion conferred by s.48B.
It is true that both sections are directed at the same mischief, that is, multiple visa applications. It is also true that the operation of both sections has been confined by judicial interpretation, as set out in the parties’ submissions. In Dranichnikov the Full Federal Court found that the inclusion of a person in an application as a member of the applicant’s family unit was not the making of an application for a protection visa under s.36 so that the appellant in that case was not precluded by s.48A from making her own protection visa application. The same reasoning was applied by the Full Federal Court in Soondur in circumstances similar to the present. However, the legislative response to those decisions now precludes that proposition. Following those amendments, the inclusion of a person in an application, as a member of the family unit of the applicant, does involve the “making” of a protection visa application. This of course is subject to the visa application being a valid one[66]. In that regard, there is no doubt that a valid protection visa application can be made on behalf of a child[67].
[66] See Yilmaz v Minister for Immigration [2000] FCA 906; Nader v Minister for Immigration [2000] FCA 908; Minister for Immigration v Li [2000] FCA 1456; Najarian v Minister for Immigration [2000] FCA 933; Bal v Minister for Immigration [2002] FCAFC 189; SZGJO v Minister for Immigration [2006] FCA 393; SZGME v Minister for Immigration [2008] FCAFC 91
[67] See Al Raied v Minister for Immigration [2001] FCA 313
The operation of s.48A was further qualified by the Full Federal Court in SZGIZ. In that case, the Federal Court held that there are effectively different sets of criteria by which a protection visa can be applied for and granted. The Court concluded that s.48A does not prevent a non‑citizen from making a further protection visa application based on a criterion which did not form the basis of a previous unsuccessful protection visa application. While that decision was directed to the complementary protection criterion in s.36(2)(aa) it would, in my opinion, but for subsequent legislative amendments, have been equally applicable to the criteria specified in s.36(2)(b) or (c). Significantly, the Amendment Act dealt specifically with that decision to reinforce the application of s.48A to all of the criteria for the grant of a protection visa, including the family group criteria. As is noted in the Minister’s submissions above at [58], the Parliamentary intention in those amendments was to ensure, among other things, that persons who were refused a visa as members of another person’s family unit and who did not raise their own protection claims at the time, would be prevented from making a further protection visa application relying on their own protection claims.
In my opinion, the express amendment of s.48A to preclude a person who has been included in a protection visa application as a member of the family unit of an applicant, from making his or her own protection visa application subsequently, leaves no room for the application of the Full Federal Court decision in Kim. In my opinion, the subsequent amendment of the section (along with amendments to s.48) to deal with that decision does not alter that position.[68]
[68] For completeness, I mention that I have considered whether this analysis is affected by the very recent decision of the Full Federal Court in AZABF v Minister for Immigration [2015] FCAFC 174. I do not think that it is
It is apparent from the Full Court’s reasoning in Kim that a concern was the injustice that may result from circumstances in which a person may be included in a visa application without his or her knowledge. In relation to s.48A, however, circumstances producing injustice can be dealt with by the Minister, pursuant to his discretion under s.48B. The focus of the Minister’s attention, in the exercise of that discretion, is the public interest rather than the private interests of the person seeking to make a further application. An element of the public interest is, however, served by the prevention of unfairness or injustice.
In response to questions from me at the trial of this matter, counsel for the Minister has provided useful submissions in relation to the exercise of the Minister’s power in relation to children, who might include children in respect of whom the Minister has specific statutory responsibilities. I accept those submissions.
The Immigration (Guardianship of Children) Act 1946 (Cth) (Guardianship Act) makes provision for, and in connection with, the guardianship of certain non-citizen children.
A “non-citizen child” is relevantly defined in s.4AAA as follows:
Non-citizen child
(1) Subject to subsections (2) and (3), a person who (the child) is a non-citizen child if the child:
(a) has not turned 18; and
(b) enters Australia as a non-citizen child; and
(c) intends, or is intended, to become a permanent resident of Australia.
(2) Subsection (1) does not apply if the child enters Australia in the charge of, or for the purposes of living in Australia under the care of:
(a) a parent of the child; or
(b) a relative of the child who has turned 21; or
(c) an intending adoptive parent of the child.
…
Subsection 6(1) of the Guardianship Act provides:
Guardianship of non-citizen children
(1) The Minister shall be the guardian of the person, and of the estate in Australia, of every non-citizen child who arrives in Australia after the commencement of this Act to the exclusion of the parents and every other guardian of the child, and shall have, as guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of 18 years or leaves Australia permanently, or until the provisions of this Act cease to apply to and in relation to the child, whichever first happens.
However, the Minister is not required to perform his guardianship functions personally. Subsection 5(1) of the Guardianship Act enables the Minister “to delegate to any officer or authority of the Commonwealth or of any State or Territory all or any of his or her powers and functions under this Act”. Since 1999, the Minister has delegated his powers and functions under the Guardianship Act to child welfare authorities in each State and Territory.
The Guardianship Act does not require the Minister to retain custody of a child; s.7(1) confers upon the Minister the power to place a non-citizen child in the custody of a person who is willing to be his or her custodian and, in the opinion of the Minister, is a suitable person to be the custodian. The Minister may, if he or she considers it necessary to do so in the interests of a non-citizen child, remove the child from the custody of his or her custodian and place the child in the custody of another person[69].
[69] Section 7(2)
It is important to note that the Guardianship Act does not codify the law as to the guardianship of non-citizen children. Subsection 8(1) makes this clear. It provides that, except as prescribed by the Immigration (Guardianship of Children) Regulations 2001 (Cth), “nothing in this Act shall affect the operation in relation to non-citizen children of any provision of the laws of any State or Territory relating to child welfare.”
Further, s.8(2) relevantly provides that nothing in the Guardianship Act affects the operation of the “migration law” (that is, the Migration Act), the Regulations, and any instruments made under either), affects the performance or exercise, or the purported performance or exercise, of any function, duty or power under the migration law, or imposes any obligation on the Minister or another Minister to exercise, or to consider exercising, any power conferred by, or under, the migration law.
The Minister’s guardianship obligations have been the subject of some, albeit limited, judicial consideration. The following key principles emerge from the decided cases.
First, in Jaffari v Minister for Immigration[70], French J (as his Honour then was) addressed the issue of a minor making of an application for a protection visa in circumstances where the Minister is his or her guardian under the Guardianship Act. His Honour relevantly said:[71]
… [I]n my opinion, the role of the Minister as statutory guardian does not affect his function as decision-maker in relation to the grant of visas to non-citizen children. He is not their guardian for the purpose of advancing applications for such visas or initiating reviews of decisions made under such applications. The very conflict that would arise if such a dual role were imposed on him indicates that it was not intended by the legislation.
The second reading speech for the Immigration (Guardianship of Children) Bill 1946 reinforces this view. The stated purpose of the Act was ‘to enable the Minister to act as legal guardian of all children who will be brought to Australia in future as immigrants under the auspices of any governmental or non-governmental migration organisation’ (Australia, House of Representatives, Debates (1946), p 3369). Arrangements had been made prior to the enactment of the Act that ‘… the Commonwealth Minister would be the legal guardian of the children, and shall delegate his authority to the State departments’ (Australia, House of Representatives, Debates (1946), p 4090). It is apparent that the Act did not contemplate the possibility of unaccompanied minors making applications for visas in circumstances which apply today.
There is nothing in the Migration Act to say that an unaccompanied minor cannot make a valid application for a visa and more particularly for a protection visa without the intervention of a guardian. The question is one of factual rather than legal capacity. A child who is assisted by a migration agent can make a valid application. A child of tender years who is incapable of comprehending the nature of such an application would be incapable of making it with or without legal assistance. It may be that in such a case questions would arise whether a duty to facilitate an application rested on the relevant State delegate. The reality must, however, be kept in mind that unaccompanied minors seeking asylum are unlikely to be of such tender age as to be incapable of making a valid application if properly assisted. [emphasis added.]
[70] (2001) 113 FCR 524
[71] at 536-537 [35]-[37]
The Minister notes that, in Re Woolley; Ex parte Applicants M276/2003[72], McHugh J[73] and Gummow J[74] said that it was unnecessary to consider the position of unaccompanied minors in that case.
[72] (2004) 225 CLR 1
[73] at 41 [104] fn 135
[74] at 59 [161]
Secondly, s.6 of the Guardianship Act confers on the Minister all the usual incidents of guardianship[75].
[75] X v Minister for Immigration (1999) 92 FCR 524 at 534-538 [33]-[34], [41], [43] per North J; Odhiambo v Minister for Immigration (2002) 122 FCR 29 at 46-47 [86]-[88] per Black CJ, Wilcox and Moore JJ; SFTB v Minister for Immigration (2003) 129 FCR 222 at 228 [24] per Weinberg, Stone and Jacobson JJ
Thirdly, the courts have recognised the obvious potential for conflict between the Minister’s guardianship role and the exercise of his or her powers and functions under the Migration Act[76].
[76] Odhiambo at 47-48 [90]-[92]; WACB v Minister for Immigration (2004) 79 ALJR 94 at 107 [71] per Kirby J
Fourthly, in WACB, the majority (Gleeson CJ, McHugh, Gummow and Heydon JJ) rejected a submission that the Minister’s role under the Guardianship Act was relevant to the construction of the notification provisions in the Migration Act, and, in the course of doing so, made the following general observation in relation to the Guardianship Act[77]:
… Any role the Minister may have as guardian is not altogether clear given the language of the relevant sections of the Guardianship Act. …
[77] at 102 [42]
In practice, the Minister meets his obligations under the Guardianship Act through a range of measures. These measures are designed to minimise the scope for conflict between those obligations and the Minister’s powers and functions under the Migration Act. They include the provision of independent legal assistance, the involvement of neutral adult support people and independent observers in interviews, and special arrangements for the assessment of protection claims involving unaccompanied minors.
Most relevantly, the Policy Advice Manual (PAM) of the Minister’s department clarifies the practice in respect of protection visa applications by unaccompanied minors. In particular, “PAM3: Refugee and Humanitarian Protection visas - All applications - Common processing guidelines”, reissued on 1 September 2015, relevantly provides:[78]
The instructions on form 866 do not require a guardian to sign the PV application of an unaccompanied minor (UAM) who is under 15, and instead state that the child may sign it on their own behalf. If the application of a UAM who is under 15 is not signed, it will not be invalid.
[78] at page 114
In accordance with the Protection Visa Common Processing Guidelines issued by the Minister’s Department on 1 September 2015, unaccompanied minors who arrived in Australia unlawfully (that is, as irregular maritime arrivals or unauthorised air arrivals) after 13 August 2012 are eligible for assistance through the Primary Application Information Service (PAIS) in relation to their visa applications.[79] Their eligibility for assistance through PAIS is also available during the merits and judicial review stages.
[79] at [66.4]
Conclusion
I conclude that the decision in Kim has no application to s.48A(1) as it stood at the relevant time in circumstances where a child who makes an application for a protection visa and previously been included, without his or her knowledge, in an application for a protection visa as a member of a family unit of a relative. I consider that the position would be the same whether or not the Minister’s guardianship obligations under the Guardianship Act have been engaged.
A necessary consequence of the above finding is that the present application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 11 December 2015
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