SZVBN v Minister for Immigration and border Protection - [2017] FCAFC 90

FEDERAL COURT OF AUSTRALIA
SZVBN v Minister for Immigration and Border Protection [2017] FCAFC 90

Appeal from: SZVBN & Ors v Minister for Immigration & Anor [2015] FCCA 2977

File number: NSD 527 of 2016

Judges: SIOPIS, ROBERTSON, GRIFFITHS, MORTIMER AND WIGNEY JJ

Date of judgment: 7 June 2017

Catchwords:
MIGRATION – whether ss 48A and 46(1)(d) of the Migration Act 1958 (Cth) as then in force applied to render not valid a second application for a protection visa concerning a mother and her young daughter and young son in circumstances where an earlier protection visa application involving those three persons had been assessed and refused

PRACTICE AND PROCEDURE – whether preferable to determine appeal by reference to the order made by the Federal Circuit Court of Australia to dismiss the review application as opposed to the separate question which was defective

Held: appeal allowed – matter remitted to Federal Circuit Court of Australia for reconsideration according to law and to make appropriate findings of fact concerning the mother’s parental authority and the legal capacity of her children

Legislation:
Immigration (Guardianship of Children) Act 1946 (Cth)

Migration Act 1958 (Cth) ss 4, 5, 29, 30, 31, 36, 45, 46, 47, 48, 48A, 48B, 50, 56, 57, 65, 78, 83, 91E, 91F, 98

Migration Amendment Act 2014 (Cth)

Migration Amendment (Complementary Protection) Act 2011 (Cth)

Migration Legislation Amendment Act (No 1) 2014 (Cth)

Migration Legislation Amendment Act (No 6) 2001 (Cth)

Migration Reform Act 1992 (Cth) ss 4, 29, 30, 31, 36, 45, 46, 47, 48, 48A, 48B, 50, 65, 98

Migration Regulations 1994 (Cth) regs 1.03, 1.12, 2.07, 2.08, 2.08A, 2.08B, 2.09, 2.10, Sch 1 cl 1401, Forms 866B, 866C, 866D, Sch 2 cl 866

Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)

Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)

Cases cited:
Al Raied v Minister for Immigration and Multicultural Affairs [2001] FCA 313

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27

Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334

Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378

Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; 201 CLR 293

Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; 184 CLR 453

Dranichnikov v Minister for Immigration and Multicultural Affairs [2001] FCA 769; 109 FCR 397

Gill v Minister for Immigration and Border Protection [2016] FCAFC 142

Grain Elevators Board (Vic) v Dunmunkle Corp [1946] HCA 13; 73 CLR 70

Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348

Jaffari v Minister for Immigration and Multicultural Affairs (No 2) [2001] FCA 1516; 113 FCR 524

Master Education Services Pty Limited v Ketchell [2008] HCA 38; 236 CLR 101

Minister for Immigration and Border Protection v Kim [2014] FCAFC 47; 221 FCR 523

Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127; 244 FCR 366

Minister for Immigration and Citizenship v Mon Tat Chan [2008] FCAFC 155; 172 FCR 193

Minister for Immigration & Multicultural Affairs v Li [2000] FCA 1456; 103 FCR 486

Minister for Immigration and Multicultural and Indigenous Affairs v Kim [2004] FCAFC 329; 141 FCR 315
NAWZ vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199

Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; 218 CLR 273

Nguyen v Nguyen [1990] HCA 9; 169 CLR 245

Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; 255 CLR 179

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; 211 CLR 441

Re Woolley; Ex parte Applicants M276/2003 [2004] HCA 49; 225 CLR 1

Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) [1992] HCA 15; 175 CLR 218

Soondur v Minister for Immigration and Multicultural Affairs [2002] FCAFC 324; 122 FCR 578

SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; 150 FCR 214

SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235

SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393

SZGMEv Minister for Immigration and Citizenship [2008] FCAFC 91; 168 FCR 487

Transurban City Link Ltd v Allan [1999] FCA 1723; 95 FCR 553

Date of hearing: 10 March 2017

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 282

Counsel for the Appellants: Mr O Jones

Counsel for the Respondents: Mr G Kennett SC with Mr B Kaplan

Solicitor for the Respondents: Sparke Helmore

ORDERS

NSD 527 of 2016

BETWEEN:
SZVBN

First Appellant

SZVBO

Second Appellant

SZVBP

Third Appellant

AND:
MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGES:

SIOPIS, ROBERTSON, GRIFFITHS, MORTIMER AND WIGNEY JJ

DATE OF ORDER:

7 JUNE 2017

THE COURT ORDERS THAT:
1.To the extent that it is required, leave to appeal be granted in respect of the orders made on 11 December 2015 by the primary judge.
2.The appeal be allowed.
3.Orders 2, 3 and 4 of the orders made on 11 December 2015 by the primary judge be set aside.
4.The matter be remitted to the Federal Circuit Court of Australia for reconsideration according to law.
5.The first respondent pay the appellants’ costs of the appeal, as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT
SIOPIS J:

I have had the benefit of reading the reasons for judgment of Mortimer J. I agree with those reasons for judgment and with the orders proposed by Mortimer J.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.
Associate:
Dated: 7 June 2017
REASONS FOR JUDGMENT
ROBERTSON J:

I have had the advantage of reading in draft the judgment of Griffiths J. I agree with the orders proposed by his Honour and with the reasons for those orders.
I emphasise the following considerations on the issue of statutory construction which is before the Court.
First, s 48A of the Migration Act, read with s 46(1)(d), is directed to what a person may not validly do as a non-citizen in the migration zone. Where that non-citizen has made an application for a protection visa where the grant of the visa has been refused then, subject to s 48B, that non-citizen may not validly make a further application for a protection visa while in the migration zone.
Second, although I accept the submission on behalf of the Minister that s 48A is part of a regime for responding to Australia’s international obligations which are specified in s 36, I do not accept a useful starting point to be that s 48A “reflects a very strict policy to the effect that a person’s claims to protection… are to be, at least in the usual case, considered only once.” This seems to me to beg the question.
Third, it follows that I prefer to approach the question of statutory construction by reference to the person to whom the section is directed, rather than to the “strict policy” based on simplicity of administration contended for by the Minister.
Fourth, in my opinion the terms of s 48A are ambiguous, in the sense that they are open to more than one construction.
Fifth, I am not persuaded that s 48A should be construed as coterminous with the validity of the first application for the grant of a protection visa. While that implication may be available, it would have been relatively simple to express that criterion if that had been intended by the Parliament.
Sixth, the construction of s 48A by the majority in Soondur v Minister for Immigrationand Multicultural Affairs [2002] FCAFC 324; 122 FCR 578 at [38] per Gray J and [109] per Goldberg J, that, with respect to the making of applications under the Migration Act, it is necessary to enquire whether a particular non-adult applicant in fact had capacity to make an application at the time when the application was made, was unaffected by the legislative amendments made to the section up to 25 September 2014, by the Migration Legislation Amendment Act (No 1) 2014 (Cth).
Seventh, in relation to the mischief to which s 48A is directed, in my opinion, consistently with the language of the section, it is directed to non-citizens who could otherwise make repeat applications for protection visas while in the migration zone. That does not answer the question raised by s 48A of who made the earlier application for a protection visa.
Eighth, I am not persuaded that the language of s 48A supports the submission on behalf of the Minister that “the references to having made an application extend to all situations in which the law would recognise or treat this person is having made the application.” There is a slippage towards the passive voice in this formulation, which I do not accept.
Ninth, there is no express provision which deems a visa application lawfully made by a parent on behalf of the child to be an application made by the child, and I do not consider as sustained the implication to that effect, for which the Minister contended, by reason of a visa application on behalf of a child being valid. Section 98 is such a deeming provision.
Tenth and last, contrary to the submission on behalf of the Minister, there is not enough in the text, context, purpose or legislative history of s 48A, in my opinion, to expand the scope of the word “made” in s 48A to attribute the making of the first application to a child and treating the first application as the child’s own act.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.
Associate:
Dated: 7 June 2017
REASONS FOR JUDGMENT
GRIFFITHS J:
Introduction

The central issue in the appeal is whether, on their proper construction as in force at the relevant time, ss 48A and 46(1)(d) of the Migration Act 1958 (Cth) (the Act) applied to render not valid a second application for a protection visa concerning a mother and her daughter and son in circumstances where an earlier protection visa application involving those three persons had been assessed and refused.
The appellants are all citizens of the Republic of Korea (South Korea). The first named appellant, SZVBN, is the daughter. The second named appellant, SZVBO, is the son. The third named appellant, SZVBP, is the mother.
On 17 November 2011, the mother applied for a protection visa (the first protection visa). Her daughter and son were included in that application as members of the family unit, but they did not make their own claims for protection. The daughter was born in June 1998 and, on 17 November 2011, she was aged 13. The son was born in October 2002 and, on 17 November 2011, he was aged 9. On 18 April 2012, the Minister’s delegate refused to grant the first protection visa application. The parties in the appeal do not dispute that the first protection visa application was a valid application. I will return to discuss the significance of this common ground in [36] below.
On 12 August 2014, the daughter (who was then aged 16) made an application for a protection visa (the second protection visa application). Her mother and her brother (i.e. the son, who was then aged 11) were included in the second protection visa application. The mother did not raise any claims of her own. The son did, however, and his claims largely mirrored those of his sister.
On 15 August 2014, an officer of the Minister’s Department determined that the second protection visa application was not valid by reason of the operation of ss 46(1)(d) and 48A of the Act and the making of the first protection visa application. The appellants sought judicial review of that determination in the Federal Circuit Court of Australia (FCCA). As will be developed further below, the primary judge ordered that a separate question should be determined which focused on the issue whether, following the Full Court’s decision in Minister for Immigration and Border Protection v Kim [2014] FCAFC 47; 221 FCR 523 (Kim), there was a requirement of knowledge of a visa application for s 48A(1) of the Act to apply. The primary judge answered this question in the negative (see SZVBN & Ors v Minister for Immigration and Border Protection [2015] FCCA 2977 (SZVBN at first instance)). The appeal is from orders of the FCCA made on 11 December 2015, which inter alia dismissed the appellants’ judicial review application to that Court filed on 15 September 2014. The mother’s participation as a party in the appeal to this Court was not questioned by any of the other parties, including the Minister.
Summary of key legislative provisions
It is convenient to first set out the two central statutory provisions as at 12 August 2014, namely ss 46 and 48A of the Act. They relevantly provided:
46       Valid visa application
(1)       … an application for a visa is valid if, and only if:
…
(d)       it is not prevented by section … 48A (protection visa),…
…
48A No further applications for protection visa after refusal or cancellation
(1)Subject to section 48B, a non-citizen who, while in the migration zone, has made:
(a)an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or
(b)…;
may not make a further application for a protection visa while in the migration zone.
(1A)     …
(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.
It is desirable to now describe or set out some additional provisions in both the Act and in the Migration Regulations 1994 (Cth) (the Regulations), as at 12 August 2014, which are potentially relevant to the task of statutory construction on the appeal.
The object of the Act was set out in s 4. That provided that the object was to regulate in the national interest the coming into and presence in Australia of non-citizens.
Section 29 empowered the Minister to grant a visa to a non-citizen.
Section 30 described the kinds of visa which may be granted, and distinguished between permanent and temporary visas.
Section 31 provided for classes of visa (including protection visas as defined in s 36). Subsection 31(3) provided that the regulations may prescribe criteria for a visa or visas of a specified class, including s 36. By s 5, “prescribed” was defined to mean prescribed by the regulations.
Section 36 dealt with protection visas. Section 36(1) provided that there was a class of visas to be known as “protection visas”. Subsection 36(2) specified the criteria for a protection visa. The first two criteria (i.e. those in paragraphs (2)(a) and (aa)), related respectively to the Minister’s satisfaction that a non-citizen in Australia was owed protection obligations under the Refugees Convention as amended by the Refugees Protocol, or, alternatively, under the complementary protection provisions. The third and fourth criteria (i.e. those in paragraphs (2)(b) and (c)) related to an applicant for a protection visa who is a member of the same family unit as a non-citizen who is mentioned in either paragraphs (2)(a) or (aa) and holds a protection visa.
Section 45(1) provided that a non-citizen “who wants a visa must apply for a visa of a particular class”.
The relevant part of s 46 is set out in [19] above.
When a valid application for a visa was lodged, the Minister was obliged under s 47 to consider it. This obligation continued until, inter alia, the application was withdrawn or the visa was granted or refused. Subsection 47(3) provided that, to avoid doubt, the Minister was not to consider an application that was not a valid application. It was made clear in s 47(4) that a decision by the Minister that an application was not valid and could not be considered was not a decision to refuse to grant the visa.
Sections 48 and 48A imposed restrictions on further visa applications by a non-citizen (it will be necessary to return below to discuss s 48 in the context of the Full Court’s decision in Kim). Section 48A is a key relevant provision on the appeal. Its relevant terms are set out in [19] above. Section 48B empowered the Minister, in certain circumstances, to determine that the restrictions imposed by s 48A did not apply to a particular non-citizen and enabled an application for a protection visa to be made by the non-citizen within a specified period. It provided:
48B     Minister may determine that section 48A does not apply to non‑citizen
(1)If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non‑citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non‑citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.
(2)The power under subsection (1) may only be exercised by the Minister personally.
(3)If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:
(a)       sets out the determination; and
(b)sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.
(4)       A statement under subsection (3) is not to include:
(a)       the name of the non‑citizen; or
(b)       any information that may identify the non‑citizen; or
(c)if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.
(5)A statement under subsection (3) is to laid [sic] before each House of the Parliament within 15 sitting days of that House after:
(a)if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b)if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(6)The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non‑citizen, whether he or she is requested to do so by the non‑citizen or by any other person, or in any other circumstances.

Section 50 should also be noted. It provided for the circumstances where a non-citizen was not prevented from making a second application for a protection visa and the information which must be considered in the later application. It provided that if a non-citizen “who has made… an application for a protection visa”, where the grant of the visa had been refused and the application had been finally determined (i.e. not where the first application was not a valid application), and the non-citizen made a further application for a protection visa, the Minister in considering that further application was not required to reconsider any information which was considered in the earlier application and was entitled to have regard to, and take to be correct, any previous decision that the Minister had made about or because of that information. The note to s 50 stated that s 48A “prevents repeat applications for protection visas in most circumstances where the applicant is in the migration zone”.
Section 65 described the Minister’s statutory task in deciding whether or not to grant a visa. That task turned on whether the Minister was satisfied that the specified criteria were met (in which case the relevant visa had to be granted) or, if not so satisfied, the Minister was obliged to refuse to grant the visa.
It is also relevant to note some relevant provisions of the Regulations, as in force on 12 August 2014, and which specified inter alia the approved forms to be completed by an applicant for a visa, including a protection visa. Significantly, the Regulations also provided that an applicant for a visa (including a protection visa) must complete an approved form in accordance with any directions on it.
As at 12 August 2014, reg 2.07 provided:
2.07     Application for visa – general
(1)For sections 45 and 46 of the Act (which deal with applications for visas), if an application is required for a particular class of visa:
(a)the relevant item of Schedule 1 sets out the approved form (if any) to be completed by an applicant; and
(b)regulation 2.12C and the relevant item of Schedule 1 set out:
(i)the visa application charge (if any) payable in relation to an application; and
(ii)the components that may be applicable to a particular application for the visa; and
(c)the relevant item of Schedule 1 sets out other matters relating to the application.
(3)An applicant must complete an approved form in accordance with any directions on it.
(4)An application for a visa that is made using an approved form is not a valid application if the applicant does not set out his or her residential address:
(a)       in the form; or
(b)       in a separate document that accompanies the application.
As at 12 August 2014, Pt 4 of Sch 1 to the Regulations, which prescribed forms and charges for protection, refugee and humanitarian visas, relevantly provided in item 1401 (which related to Protection (Class XA) visas), as follows:
1401.   Protection (Class XA)
(1)       Form: 866.
…
(3)       Other:
(a)Application must be made in Australia.
(b)Applicant must be in Australia.
(c)Application by a person claiming to be a member of the family unit of a person who is an applicant for a Protection (Class XA) visa may be made at the same time and place as, and combined with, the application by that person.
(4)       Subclasses:
866 (Protection).
Regulation 1.12(1), as in force at the relevant time, provided that a person is a member of the family unit of another person (the family head) if inter alia, the person is a dependent child of the family head. Moreover, “dependent child” was defined in reg 1.03 as including a child of a person where the child has not turned 18. It was presumably in reliance upon these provisions that the daughter and son were included in the first protection visa application as members of the family unit relating to their mother.
The first and second protection visa applications
As noted above, it was common ground between the parties that the first protection visa application was a valid application. It is important to note, however, that Mr Jones of counsel (who appeared for the appellants) made clear that his clients’ acceptance of the proposition that the first protection visa application was validly made, simply meant that they accepted that the application had been made in a physical sense, but that the parties disagreed as to whether the expression “has made” in s 48A had further content. He described the appellants’ position as that “has made” means “has validly and knowingly made”.
It is convenient to describe some relevant features of the first and second protection visa applications, which involved the filling out of approved forms, copies of which were included in the appeal book (although they were not the subject of any detailed findings of fact below because of the course taken there to hear and determine a separate question). The contents of the approved forms do not, of course, dictate or affect the proper construction of s 48A of the Act. They are relevant, however, in two respects. First, they provide a practical framework within which the task of statutory construction is to be performed. Secondly, and more importantly, their contents are potentially relevant to the operation of reg 2.07(3) which, as noted above, required an applicant for a visa to complete an approved form in accordance with any directions on it.
The first protection visa application comprised Parts B, C and D, all of which were approved forms at the relevant time. Part B comprised Form 866B. It was stated in the footer that the design of that pro-forma was dated April 2011. Part B was entitled “Persons included in this application and family composition”. It was signed by the mother in her own right and dated 2 November 2011. The first protection visa application was received by the Department on 17 November 2011. The daughter and son were also identified in question 1 of Part B as persons who were included in the application. Neither of them made separate claims to be a refugee and were included as members of the family unit. The mother signed Part B on behalf of both the daughter and the son (who, as noted above, were then aged 13 and 9 respectively), including the required declaration. This was presumably done by the mother in accordance with the direction in question 20 on page 9 of the Part B pro-forma, which stated:
20 To be signed by all the persons named in Question 1
If any of the applicants who should answer this question and sign the declaration is under 15 years of age or lacks legal authority to sign on their own behalf, a parent or guardian must sign on their behalf, except in the case of unaccompanied minors who may sign on their own behalf.
The “Applicant declaration” in question 20 was as follows:
I declare that:
ŸThe information I have supplied on or with this form is complete, correct and up-to-date in every detail.
ŸI understand that if I have given false or misleading information, my application may be refused, and any visa issued may be cancelled.
ŸI understand that if this application is approved, any person not included in this application will not have automatic right of entry to Australia by way of this application.
ŸIn accordance with the Migration Act 1958, I undertake to inform the Department of Immigration and Citizenship of any changes to my personal circumstances (eg. relationship status, changes to the family composition including the birth of a child and change of name) while my application is being considered.
ŸI undertake to inform the Department of Immigration and Citizenship if I intend to change my address for more than 14 days while my application is being considered.
ŸI authorise the Australian Government to make any enquiries necessary to determine my eligibility for grant of a Protection (Class XA) visa in Australia, and to use any information supplied in this application for that purpose.
ŸI understand that information provided by me may be disclosed to third parties as outlined in Part A Authority to disclose information.
ŸI have read and understood the information supplied to me in this application.
Part C (comprised by Form 866C) in the first protection visa application was completed and signed by the mother. Form 866C was entitled “Application for an applicant who wishes to submit their own claims to be a refugee”. In brief, the mother claimed that her husband had been violent and abusive to her and her children, that the family left South Korea to make a new start and feared further violence from her husband and father of the children if they were to return to South Korea because she feared he would pursue them there.
The first protection visa application included two Part D forms (Form 866D) which related to the daughter and son respectively. Part D was the appropriate form for a member of the same family unit who did not have his or her own claims to be a refugee, but who was included in the protection visa application. The pro-forma required the applicant’s signature in respect of two separate matters. The first, in question 28, was a statement which was described as the “Australian Values Statement”. It was in the following terms:
28 AUSTRALIAN VALUES STATEMENT
You must sign this statement if you are aged 18 years or over.
I confirm that I have read, or had explained to me, information provided by the Australian Government on Australian society and values.
I understand:
ŸAustralian society values respect for the freedom and dignity of the individual, freedom of religion, commitment to the rule of law, Parliamentary democracy, equality of men and women and a spirit of egalitarianism that embraces mutual respect, tolerance, fair play and compassion for those in need and pursuit of the public good;
ŸAustralian society values equality of opportunity for individuals, regardless of their race, religion or ethnic background;
ŸThe English language, as the national language, is an important unifying element of Australian society.
I undertake to respect these values of Australian society during my stay in Australia and to obey the laws of Australia.
I understand that, if I should seek to become an Australian citizen:
ŸAustralian citizenship is a shared identity, a common bond which unites all Australians while respecting their diversity;
ŸAustralian citizenship involves reciprocal rights and responsibilities. The responsibilities of Australian citizenship include obeying Australian laws, including those relating to voting at elections and serving on a jury.
If I meet the legal qualifications for becoming an Australian citizens and my application is approved I understand that I would have to pledge my loyalty to Australia and its people.
Signature of Applicant: [The first and second appellant’s signatures appeared in this part of their respective Part Ds]
It is important to note that both the first and second appellants personally signed the “Australian Values Statement” in their respective Part D forms notwithstanding that neither was aged 18 years or over. The direction at the commencement of question 28 did not prohibit persons under the age of 18 years from signing the Australian Values Statement; rather, it required an applicant who was aged 18 years or over to sign the statement.
The second matter in Part D which required an applicant to read and sign was the “Applicant’s declarations” in question 30. It was in the following terms:
30       DECLARATION
Note: Section 11 of the Statutory Declarations Act 1959 provides that ‘a person must not wilfully make a false statement in a statutory declaration’, and provides a maximum penalty of 4 years imprisonment.
WARNING: Giving false or misleading information is a serious offence.
Please read and sign this declaration
I
(1)[the name and address of the first or second appellants was given here in their respective Part Ds]
do solemnly declare:
ŸThe information I have supplied on or with this Part C of the Form 866 is complete, correct and up-to-date in every detail.
ŸI have never been convicted of a crime or any offence in any country except as shown in Schedule A.
ŸTo the best of my knowledge, I am not the subject of any criminal investigation, and there are no criminal charges pending against me except as shown in Schedule A.
ŸI have not been acquitted of an offence on the grounds of unsoundness of mind or insanity.
ŸI do not have any spent convictions under any spent convictions legislation in any country or any convictions on my police record.
ŸI have not been involved in war crimes or crimes against humanity such as killing, torture, enslavement, starvation or other inhumane acts committed against civilians or prisoners of war.
ŸI have never been associated with anyone else who has been or could reasonably be suspected to have been, or is, involved in any activities referred to above.
ŸTo the best of my knowledge I do not have any matters which are either unresolved or in which I have been, or am involved, that would bring into question whether or not I pass the Character Test (see explanation this page) as defined at section 501 of the Migration Act 1958.
ŸI understand that if I have given false or misleading information, my application may be refused, and any visa issued may be cancelled.
ŸI understand that if this application is approved, any person not included in this application will not have automatic right of entry to Australia by way of this application.
ŸIn accordance with the Migration Act 1958, I undertake to inform the Department of Immigration and Citizenship of any changes to my personal circumstances (eg. relationship status, changes to the family composition including the birth of a child and change of name) while my application is being considered.
ŸI undertake to inform the Department of Immigration and Citizenship if I intend to change my address for more than 14 days while my application is being considered.
ŸI authorise the Australian Government to make any enquiries necessary to determine my eligibility for grant of a Protection (Class XA) visa in Australia, and to use any information supplied in this application for that purpose.
ŸI consent to the Australian Government making inquiries with the relevant authorities regarding my immigration or status in those countries, in which the Australian Government suspects that I may have temporarily or permanently resided in, other than the country(s) I claim to fear persecution from.
ŸI understand that my personal identifiers and my biographical information held by the Department of Immigration and Citizenship may be given to Australian law enforcement agencies to help identify me, to help determine my eligibility for grant of a Protection visa and for law enforcement purposes. I consent to:
-     Australian law enforcement agencies disclosing my personal identifiers and biographical and criminal record information to the Department of Immigration and Citizenship for any of the purposes outlined above; and
-     the Department of Immigration and Citizenship using the information obtained for the purposes of the Migration Act 1958 or the Australian Citizenship Act 2007.
And I make this solemn declaration by virtue of the Statutory Declaration Act 1959, and subject to the penalties provided by the Act for the making of false statements in statutory declarations, conscientiously believing the statements contained in this declaration to be true in every particular.
(2)[The signature of the first or second appellants appeared here in their respective Part Ds]
(3)[The signature of a solicitor appeared here in both the first and second appellant’s Part Ds]
(4)     [In both Part Ds the witness was a NSW Solicitor]
We strongly advise that you keep a copy of your application and all attachments for your records.
Notes
(1)Here insert name, address and occupation of the person making the declaration.
(2)Signature of person making declaration.
(3)Signature of person before whom declaration is made (a person employed by the Commonwealth for a continuous period of 5 years or more is a person before whom the declaration may be made). The department can advise of other people eligible to witness this Statutory Declaration if necessary.
(4)Here insert title of person before whom the declaration is made (eg public servant referred to at note 3 above).
To sum up, notwithstanding that, on 11 November 2011, the daughter and son were only aged 13 and 11 respectively, each personally signed the Australian Values Statement in question 28 as well as the Applicant’s declarations in question 30 of their respective Part D forms. Their signatures were witnessed by the solicitor/migration agent who was identified in question 14 of Part B as having given assistance in completing that form.
It might also be noted that, in contrast with the direction contained in question 20 in Part B (which required a parent or guardian to sign the “Applicant declaration” if any of the applicants who should answer the question and sign that declaration were under 15 years of age or lacked legal authority to sign on their behalf, except in the case of unaccompanied minors who could sign on their own behalf), there was no such direction given in relation to the Applicant’s declarations in question 30 of Part D.
These matters may be relevant to the operation of reg 2.07(3) and the obligation on an applicant to complete an approved form in accordance with any directions on it (see [33] above).
The second protection visa application also comprised Parts B, C and D, all of which were approved forms at the relevant time. Part B comprised Form 866B. It was stated in the footer that the design of that pro-forma was dated July 2014. Part B was entitled “Persons included in this application and family composition”. It was signed by the daughter and dated 1 August 2014 and was recorded as having been received by the Department on 12 August 2014. The daughter, her brother and her mother were all identified as persons who were included in the application. It was stated that the mother had previously applied for refugee status or protection visa on 17 November 2011. It was also stated that both the sister and her brother had previously applied for student visas. On page 10 of Part B, there was a direction in question 23 that all the persons who were included in the application had to sign the “Applicant declaration”. The pro-forma contained the same statement regarding persons under the age of 15 or lacking legal authority to sign on their own behalf as appeared in question 20 in Part B of the first protection visa (see [38] above). The terms of the declaration were also similar to those in the first protection visa application (see [39] above).
The daughter also signed the “Declaration of Truth”, which was on page 1 of Part B of the second protection visa application. It was in the following terms (emphasis in original):
Declaration of Truth
1Australians value honesty and fairness. The department is committed to treating you with honesty and fairness and expects in return that you will tell the truth in this application.
As the primary applicant you are required to make a declaration that you will tell the truth in your application.
WARNING: Giving false or misleading information is a serious offence.
Declaration
ŸI declare that the information I will provide in this application is truthful and honest in every way.
ŸI understand that if I give false or misleading information, this application may be refused, and any visa issued may be cancelled.

Beneath that Declaration of Truth appeared the daughter’s name, her signature and the date, being 1 August 2014.
The “Applicant declaration” on page 10 of Part B was signed by the daughter in her own right, the mother in her own right and the mother on behalf of the son. There is a handwritten note under the declarations which states “Mothe [sic] signed for [son] – in loco parentis”.
Part C, which was on Form 866C, was filled out and signed by the daughter, including the Declaration of Truth (which contained similar terms to the Declaration of Truth in Part B) and the “Applicant’s declaration” in question 68 (which also contained similar terms as the Applicant’s declaration in question 20 in Part B). Part C related to an applicant who submitted their own claim for protection. In brief, the daughter claimed that she feared harm from her father given his history of violence. The page containing question 48 (which asked “Why do you think this will happen to you if you go back?”) included the following handwritten statements (without alteration):
Have lived in Australia during most formative years. Applicant seeks to emphasize neither she nor to the best of her knowledge her brother had any idea as to inclusion in a protection visa application. Had NO awareness of the conduct/actions of previous solicitor – as particularized by Affidavits filed in High Court (with respect to mother
The issue of awareness as to circumstances of previous application most relevant. Circumstances more compelling than that presented in Kim
There was also another Part C pro-forma in relation to the brother. This was on Form 866C and was signed by the mother acting in loco parentis, including the Applicant’s declaration in question 68. On page 9, there was a handwritten statement that the son repeated the submission of his sister in her Part C. There was another handwritten statement as follows:
Firstly given the age of the Applicant and circumstances of lodgement – the Applicant did not have any idea that they (sic) were formally included in a protection visa. Rather the mother… made application in circumstances where it may even be asserted that as at time of lodgement of application she did not have any idea as to the meaning and consequences of the protection lodgement.
The mother… indicates she included her children in her application (upon a Part D basis). She did not explain the fact she was proceeding with this type of application to the children, indeed [the son] was only 9 at the time.
Part D, which was entitled “Application for a member of the family unit” (Form 866D), was completed and signed by the mother in her own right.
Proceedings before the FCCA
The grounds of the application to the FCCA were in the following terms, as amended:
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 (sic) (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.
There are two points to be made about the amended application. First, the references to the “First, Second and Third Applicants” appear to be in error. The applicants below were respectively the daughter (SZVBN), the son (SZVBO) and the mother (SZVBP) but they appear to be misidentified in ground 1 of the amended application. Secondly, it appears that particulars (c) and (d) of the amended application provided the basis for the wording of the separate question which the primary judge ordered be heard in advance of any other questions. For reasons which will be developed below, I consider that this wording is unfortunate and obscured the central issue, being the proper construction of s 48A of the Act in the context of the particular circumstances of this case.
It was common ground, both below and on the appeal, that the daughter and the son were unaffected by the amendments brought about by the Migration Legislation Amendment Act (No 1)2014 (Cth) to insert s 48A(1AA) into the Act.
In SZVBN at first instance the FCCA made orders as follows:
(1)The applicants are granted leave to rely upon their amended application filed on 1 October 2015.
(2)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 (sic) 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?
(3) The answer to the question is "no".
(4) The application filed on 15 September 2014 is dismissed.
The primary judge noted, at [12], that the factual issue concerning the knowledge of the daughter and, I assume, of the son, of the earlier protection visa application would be the subject of a factual contest.
Having set out the parties’ submissions, the primary judge, at [66]-[71], concluded that the decision in Kim concerning the operation of s 48 did not similarly qualify the operation of s 48A as it stood at the relevant time.
The primary judge said that the two sections served somewhat different purposes and had a different legislative history.
Further, legislative amendments in response to the decisions of Full Courts in Dranichnikov v Minister for Immigrationand Multicultural Affairs [2001] FCA 769; 109 FCR 397 (Dranichnikov) and Soondur v Minister for Immigrationand Multicultural Affairs [2002] FCAFC 324; 122 FCR 578 (Soondur) precluded the proposition 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. Following those amendments, the primary judge said, at [68], 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 was subject to the visa application being a valid one, but there was no doubt that a valid protection visa application may be made on behalf of the child.
The primary judge next considered, at [69], the decision of the Full Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235 (SZGIZ) and the legislative amendments in response to that decision. The primary judge said, at [70], that 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, left no room for the application of the decision in Kim.
Finally, the primary judge said, at [71], that circumstances producing injustice under s 48A may be dealt with by the Minister pursuant to his discretion under s 48B. The primary judge said that the focus of the Minister's attention in the exercise of that discretion was the public interest, but an element of the public interest was served by the prevention of unfairness or injustice.
Having answered the separate question in the negative, the primary judge proceeded to dismiss the amended application for judicial review.
The appeal
The single ground in the notice of appeal to this Court is as follows:
1.The primary judge erred by concluding that the reasoning of this Court in Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523 was not applicable to s 48A(1) of the Migration Act 1958 (Cth) (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 a relative.
The Minister filed a notice of contention on the ground that the judgment in Kim was plainly wrong.
The parties’ submissions summarised
The appellants submitted that the amendment to s 48A to which the primary judge referred in response to the decisions in Dranichnikov and Soondur was itself repealed. As a result, the appellants submitted, the primary judge was wrong to conclude that the express amendment of s 48A in 2001 left no room for the application of the decision in Kim.
The appellants also submitted that s 48B was not an adequate remedy for the injustice. That section was exercisable only in the public interest; it must be exercised by the Minister personally; the Minister had no duty to consider whether or not to exercise s 48B; and there was no indication that the injustice of a person being confined to an application for a protection visa of which they had no knowledge would occasionally, let alone frequently and necessarily, give rise to a favourable exercise of s 48B.
The appellants submitted that the critical term in s 48A(1) was ‘has made’ and it should be construed to avoid injustice: it was unfair for a person to be visited with the statutory consequence of a previous application of which the person was unaware. In Kim, the appellants submitted, the Full Court construed s 48 and avoided an unjust result. The same approach should be taken to s 48A. Indeed, the appellants submitted, the context of s 48A magnified the injustice which would flow from having the provision extend to a previous application which was not knowingly made. Section 48A, where it applies, prevents a person from claiming the persecution or harm relevant to a protection visa. Where something so detrimental to an individual was potentially at stake, s 48A should not impose silence on the person due to previous claims of which the person did not know.
The appellants submitted that the contextual matters referred to by the primary judge were neutral for present purposes. They concerned when an application was validly made so that it may be determined. That concern was quite different from s 48A which was directed to when an application could not be made and was prevented from being determined.
The appellants submitted that the Explanatory Memorandum to the Bill that became the Migration Legislation Amendment Act (No 6) 2001 (Cth), pointing to a stated desire to prevent “members of families pursuing claims for protection one after the other” and “misuse of the protection visa process by family groups wishing to prolong their stay in Australia by lodging protection applications serially”, was no answer to the question of whether s 48A was intended to operate so unjustly that a family member could be caught by an application of which they were unaware or could not comprehend. The appellants made a similar submission in relation to the explanatory material relevant to the Bill that became the Migration Amendment Act 2014 (Cth), which referred to a desire to prevent “persons who were refused as members of another person's family unit… and who did not raise their own protection claims at the time… from making a further protection visa application relying on their own protection claims”.
The Minister submitted the construction of s 48A by the primary judge was correct, in the light of the text and context of that provision. The Minister submitted that Kim was distinguishable and did not govern the construction of s 48A.
The Minister submitted that s 48A ought to be construed so that it operated to prevent a non-citizen, whether an adult or a child, from making a repeat application for a protection visa in the migration zone where he or she had previously made a valid application in the migration zone that had been refused.
In support of that construction, the Minister identified the following five steps.
First, the Minister submitted that a visa application will have been “made” within the meaning of s 48A(1) if it is a valid application as referred to in s 46.
Secondly, the Minister submitted the Act did not create, or recognise, any distinction between a visa application made “by” a non-citizen, on the one hand, and one made on his or her behalf, on the other. This was evident from ss 45(1) and 46. Sections 46A and 46B clearly denoted the visa applicant when they referred to applications “made by” certain classes of person. The authority to make an immigration decision in relation to a child is vested in his or her parents, such authority diminishing until the child attains competence: Re Woolley; Ex parte Applicants M276/2003 [2004] HCA 49; 225 CLR 1 (Woolley’s case) at [104], [155]-[156]. In circumstances where the Act and the Regulations did not clarify the position of children, common law principles must be treated as informing the operation of those provisions in the Act and the Regulations that dealt with the making of visa applications. The Act and the Regulations treat the child as the visa applicant himself or herself. Reference was made to regs 2.08, 2.08A and 2.08B. The child in Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; 201 CLR 293 was treated in that way.
Thirdly, read in the context of the provisions in Subdiv AA of Div 3 of Pt 2 of the Act, the reference in s 48A(1)(a) to a non-citizen having “made” an application for a protection visa conveyed no more than that the non-citizen was the person by whom, for the purposes of the Subdivision, an earlier valid application is taken to have been made. Section 48A did not draw any distinction between applications made in person and those made by agents. Because in the present case the second protection visa application was validly made in the names of the son and the daughter, having been signed on their behalf by their mother, each of the son and the daughter was a person who “applied for” such a visa; was, thereby, an “applicant”; and “made an application for a protection visa” within the meaning of s 48A(1). The Minister submitted that s 98 of the Act was a good illustration of this point.
Fourthly, the Minister submitted the text of s 48A(1)(a) did not dictate a conclusion that, in order for a non-citizen child to be said to have “made… an application for a protection visa”, he or she must have had knowledge, actual or constructive, of his or her first visa application. The language used in each of s 48(1)(b)(i) and s 48A(1)(a) was not identical. The former, considered in Kim, applied to a non-citizen who was refused a visa “for which the non-citizen had applied”. Section 48A plainly, the Minister submitted, was directed to a visa application validly made. The word “made” did not refer to the non-citizen having “applied” for a visa. Section 48A did not use the language of “applied” considered in Kim. There were also structural differences between the two provisions: s 48 was a qualified permission which applied generally and focused on the applicant personally. Section 48A, on the other hand, applied only to one class of visa and was a general prohibition on the making of repeat applications for that class. The policy to which s 48A gave effect was that, in general, the Minister was only required to consider a person’s claims for protection once. The importance and strictness of that policy were reflected in the amendments to s 48A made by the Migration Legislation Amendment Act (No 6) 2001, the substance of which was retained in the current provision; the insertion of s 48A(1C) by the Migration Amendment Act 2014 to overcome the decision of the Full Court in SZGIZ; and the limits imposed by s 50. Sections 48 and 48A were enacted at different times and each had a different legislative history.
Fifthly, the Minister submitted the context, purpose and legislative history of s 48A militated against the construction for which the appellants contended. The mischief to which s 48A was directed was the making of repeat protection visa applications. So much was acknowledged in Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127; 244 FCR 366 (SZVCH) at [5], [16], [102]-[105] and [116]. The Minister submitted that Mortimer J, in particular, discussed the legislative history of s 48A and observed, at [105]:
… that the Parliament's intention in s 48A, by the use of the phrase "application for a protection visa" in s 48A(1), is to prevent any further application for the class of visa known in the Act as a protection visa, by any person included in the former application. That intention is, in my respectful opinion, also clear from the use of the word "or" in what I see as the inclusive but not exhaustive list in s 48A(2)(a). It is also consistent with the general scheme of the Migration Act, which I have set out above.
By way of legislative history, the Minister referred to the Migration Legislation Amendment Act (No 6) 2001 (Cth) and to [15] of the Explanatory Memorandum to the relevant Bill. The Minister submitted that the fact that ss 48A(2)(aa) and (ab) were replaced in 2011 by a new subpara (aa) did not detract from the relevance of the 2001 amendments since the new provision in the definition of “application for a protection visa”, added by the Migration Amendment (Complementary Protection) Act 2011 (Cth), did not do away with the work done by the 2001 amendments. Nor did the 2014 amendments to s 48A(2). On the contrary, the extrinsic material confirmed that s 48A would operate to prevent a member of the primary visa applicant's family unit from making a further visa application relying on their own claims for protection.
The Minister submitted the immediate statutory context, consisting of ss 46A, 46B and 48B, supported his construction of s 48A. Sections 46A and 46B used language similar to that which was used in s 48A and were directed to the legal status of a visa applicant. Importantly, the Minister submitted, s 48A was subject to s 48B which empowered the Minister to “lift the bar”. Section 48B constituted a legislative choice as to how the potentially harsh consequences of s 48A were to be dealt with and strongly indicated an intention that the terms of the provision were to be given their full effect. The Minister submitted that the appellants' submissions by reference to notions of inconvenience and injustice did not pay sufficient regard to the text and context of s 48A(1).
The Minister submitted that his notice of contention needed to be dealt with only if, contrary to his primary submission, Kim stood in the way of the construction of s 48A adopted by the primary judge.
Consideration and disposition of the appeal
At the outset, I should explain why I consider the wording of the separate question to be both unfortunate and a distraction from the resolution of the central issue of statutory construction in this case. As noted above, the separate question seems to have been drafted to reflect the terms of particular (c) in ground 1 in the amended application in the FCCA (see [54] above). Accordingly, prominence is given in the wording of the separate question to the Full Court’s decision in Kim and the finding there that, for s 48 of the Act to apply to render not valid an application for a visa which included a child applicant, the child had to have knowledge that he or she had been involved in an earlier unsuccessful application for a visa. In effect, the separate question asked whether this requirement of knowledge also applied to s 48A which, in contrast with s 48, dealt specifically with protection visas.

There are several difficulties with the wording of the separate question. First, instead of putting at the forefront of the question the proper construction of s 48A of the Act, as in force at the relevant time, primary emphasis was placed on Kim which related to a different statutory provision, namely s 48. As the Minister pointed out, the relevant text, scope and history of ss 48 and 48A were quite different.
Secondly, I consider that the emphasis which was given in both the amended application and in the separate question to the word “knowledge”, which the Full Court had used in Kim in the particular circumstances of that case, expressed too narrowly the central legal and related factual issue in this proceeding. That central issue, as is reflected in the way in which the parties conducted this appeal, is whether the Departmental officer fell into jurisdictional error in determining that s 48A applied to prevent the daughter and son from making the second protection visa application in circumstances where they were disputing that their mother had legal authority to include them in the first protection visa application. This dispute was based on the claims of both the daughter and son that they had no knowledge that they had been included in the first protection visa application. The issue of knowledge on the part of a dependent child will generally be tied up with the issue of that child’s legal capacity or competence at the relevant time. Mr Kennett SC (who appeared together with Mr Kaplan for the Minister on the appeal) submitted that it had to be inferred that the statutory regime “assumes the operation of general law principles relating to parental powers and responsibilities” (such as those discussed in Woolley’s case and Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15; 175 CLR 218 (Marion’s case)). As those cases demonstrate, the issue of parental authority viz a viz a dependent child is inextricably linked to the issue of the child’s emerging legal capacity and competence in his or her own right (see further [132] ff below).
In my respectful view, the separate question was expressed too narrowly. The focus for present purposes should be on the question of the mother’s legal authority to include her children in Part B of the first protection visa application, having regard to the age and competency of the children and their claim that they had no knowledge of their inclusion in the first protection visa application, and the consequences of these matters for the application of s 48A to their situation. This would require appropriate findings to be made on these matters before an informed determination could be made as to the application of s 48A to the particular circumstances of the daughter and son in this family unit.
The difficulties and problems which can arise when proceedings are conducted by way of separate questions are well known (see, for example, Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 at [49]-[59] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ). In view of the shortcomings in the terms of the separate question, I consider that the appeal should be determined on the basis of whether the primary judge’s reasons for dismissing the application for review filed in the FCCA on 15 September 2014 involve appealable error. This necessarily raises for determination the central issue of the proper construction of s 48A of the Act. In case leave is required to appeal from the order dismissing the application, based upon the primary judge’s answer to the separate question, I consider that such leave should be granted.
I consider that the primary judge erred in his construction of s 48A. In summary, my reasons and conclusions are as follows:
(1)The text and structure of s 48A as in force at the relevant time direct primary attention to the person who “has made” a previous application for a protection visa, which necessarily raises questions concerning the legal competence of such a person. Reflecting the fact that the provision is written in the active voice, its focus is on the person (and not just on the fact that an application has been made). This is further reinforced by the latter part of s 48A which operates to prevent a person from making a further application for a protection visa in the specified circumstances.
(2)While it is clear that amendments to s 48A made by the Migration Legislation Amendment Act (No 6) 2001 (Cth) reverse the decision of the Full Court in Dranichnikov, there is nothing in either the text or extrinsic materials relating to those amendments to indicate any intention to address any issue concerning the legal competence of a dependent child to “make” an application for a protection visa for the purposes of the bar created by s 48A.
(3)The majority of the Full Court in Soondur held that before it can be determined that a person “has made” a previous application for a protection visa, there must be a factual enquiry as to the age of that person and as to his or her capacity to understand the nature of such an application.
(4)The majority’s construction of this aspect of s 48A in Soondur should be adopted and applied in the circumstances of this appeal. Despite several series of amendments to s 48A after the time of the events which gave rise to Soondur, there is nothing in the text of those amendments or in the accompanying relevant extrinsic materials to indicate any intention to reverse this aspect of the reasoning in Soondur. This position changed with the amendments which were made to both ss 48 and 48A by the Migration Amendment Act 2014 (Cth), following the Full Court’s decision in Kim, but those amendments do not apply to this appeal.
(5)The proper construction of s 48A and its application to the circumstances in this appeal is not assisted by the reasoning of the Full Court in Kim, which was directed to a differently-worded statutory provision with a different scope and history, namely s 48.
(6)Having regard to the proper construction of s 48A, as in force at the relevant time, it will be necessary for the FCCA on the remitter to make appropriate findings concerning the legal competence and understanding of the first and second appellants when the first protection visa application was made.
(a) Some textual and structural considerations
The text and structure of s 48A(1) is significant, including the fact that it is written in the active, and not the passive, voice. The focus of the provision is on a person of a particular status, namely a non-citizen who, while in the migration zone, has done something, namely “has made” an application for a protection visa. The focus of the provision on a person who has that particular status is further underlined by the latter part of the provision, which prevents the person who is a non-citizen from making a further application for a protection visa while in the migration zone where a previous application for a protection visa has been refused. Section 48A(1) operates not by reference to the validity of a protection visa application, but rather on the person who has made a protection visa application and who has a particular status. These textual and structural matters direct attention to the question whether the relevant person had the necessary competence to “make” such an application. In the case of a dependent child, it may well be that a parent or guardian has authority to make an application for a protection visa on behalf of that child. But whether or not that is the case will depend on the particular facts and circumstances of that parent/guardian and the dependent child. This requires an assessment to be made of whether the authority of the parent/guardian was affected at the relevant time by any emerging legal competence or capacity on the part of the child. Consideration needs to be given to such matters as the age of the child, their knowledge of the application and its contents, and the child’s level of comprehension or understanding concerning the nature of such an application.
(b) Dranichnikov and the significance of the 2001 amendments to s 48A
In 2001, s 48A was amended to overcome the Full Court’s decision in Dranichnikov. At that time s 48A 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.
...
(2) In this section:
application for a protection visa includes:
(a)an application for a visa, or entry permit (within the meaning of this Act as in force immediately before 1 September 1994), a criterion for which is that the applicant is a non-citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol; and
(b)an application for a decision that a non-citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; and
(c)an application covered by paragraph (a) or (b) that is also covered by section 39 of the Migration Reform Act 1992.
In Dranichnikov, the appellant’s husband had lodged an “Application for a Protection Visa (866)” in the prescribed form in April 1997, on the ground that he was a refugee to whom Australia had protection obligations under the Refugees Convention. The appellant and her 9 year old daughter were named in the husband’s application as members of his family unit. The husband’s application was refused and subsequently the appellant wife attempted to lodge a further “Application for a Protection Visa (866)” in the prescribed form making a claim to be entitled to a protection visa in her own right as a refugee, as defined in the Refugees Convention.
The Full Court held that s 48A did not prevent the appellant wife from lodging her own application and the Department was in error to consider it as not being valid. The Full Court held (at [16]):
Construing the Act alone it is clear that the class of protection visas referred to in s 48A is the class of visas provided for in s 36. A criterion for that class of protection visas is that Australia owes protection obligations to the applicant as a refugee under the Refugees Convention. Thus, prima facie, a person who applies for a visa on the basis of being a member of a family unit of a refugee, and not as a refugee, is not applying for the class of protection visas referred to in s 36. The original application of the appellant was made on that basis and, therefore, does not appear to be an application for the class of protection visas referred to in s 36. If that is the correct view of the original application, s 48A would not operate to prevent the appellant from making an application for a visa in that class.
As noted above, the purpose of the amendments to s 48A contained in the Migration Legislation Amendment Act (No 6) 2001 (Cth) was to preclude the kind of application the Full Court had found valid in Dranichnikov. In the Second Reading Speech (Australia, House of Representatives, Debates (2001) at p 30423-30424), the Minister said:
As well, the act [sic] will be amended to make clear that protection visas can be granted to spouses and dependants in Australia of a person found to be owed protection obligations even though the spouse and dependants did not have personal claims for protection. However, consequential changes are then made by the legislation to make it clear that provisions in the Migration Act that bar repeat protection visa applications relate also to a person who has not raised protection claims in their first protection visa application. Without this provision, dependants of an unsuccessful protection visa applicant who had chosen not to advance protection claims when given the opportunity to do so could apply again making such claims. Potentially, family members could apply for protection with each member taking turns to be the one advancing protection claims – in other words, it can be used as a device to ensure that family groups remain in Australia by pursuing application after application. This could prolong a family’s stay in Australia for years as each applicant in turn applies and pursues appeals. The bill will extend the bar on repeat applications to ensure that all family members included in a protection visa application will be barred from making another application for a protection visa.
The Explanatory Memorandum to the Migration Legislation Amendment Bill (No 6) 2001 stated at [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.
There are two points to be made about these extrinsic materials. First, it is notable that Dranichnikov did not involve any issue concerning the legal competence of the 9 year old daughter who was included in the protection visa application there as a member of the family unit. Secondly, while it is evident from these extrinsic materials that the mischief the subject of the 2001 amendments was to prevent “misuse” of the protection visa process by family groups who could prolong their stay in Australia by lodging serial protection visa applications, there is nothing in either the text of the 2001 amendments or the accompanying extrinsic materials to suggest that the amendments were intended to address any issue concerning the legal capacity of a dependent child. That issue did not arise in Dranichnikov but it did arise in the Full Court’s subsequent decision in Soondur, to which I will return shortly. Soondur was decided after the 2001 amendments commenced but in circumstances where those amendments had no application to the relevant events in that case.
As noted above, in the appeal the Minister relied on Mortimer J’s observations in SZVCH at [105] concerning the legislative history to the 2001 amendments. Her Honour’s observations are set out in [79] above. There are several points to note about those observations. First, it is plain that they were not directed to the question which arises in this case where a child claims to have had no knowledge of a previous protection visa application in which he or she was included as a member of the family unit and there is an issue as to the authority of a parent to make such an application on the child’s behalf. No such issue arose in either Dranichnikov, which was overridden by the 2001 amendments, or SZVCH itself. Secondly, her Honour’s observations, if read literally, make no allowance for the potential operation of other exceptions to “the general scheme” of the Act, including those relating to fraud by a third party (see SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189). Thirdly, the observations are obiter and were not the subject of any analysis or discussion by the other four members of the Full Court in SZVCH. In my respectful view, the observations do not assist in the resolution of the central issue of construction in this appeal.
(c) The Full Court’s decision in Soondur
It is desirable to say something more about the Full Court’s decision in Soondur. In that case, the first appellant was the mother of the second and third appellants. The mother lodged a protection visa application in April 1992, which application was refused on 28 February 1996. The mother then lodged a second protection visa application on 19 December 2000. She claimed to be entitled to a protection visa on the ground that she was a refugee to whom Australia had protection obligations. She also claimed that the second and third appellants were entitled to protection visas as members of her family unit. A Departmental officer refused to accept the second protection visa application, relying on s 48A of the Act. The appellants sought a judicial review of this decision in the Federal Court. Their application was dismissed at first instance.
In the appeal to the Full Court, the second appellant sought to challenge the officer’s decision concerning the application of s 48A claiming that the second protection visa application was an application made by her in her own right and that the Minister was obliged to consider it. Section 48A was relevantly in the same terms as in Dranichnikov. Justice Gray, with whom Goldberg J agreed, held that, for the purposes of s 48A, the inclusion of a person of the family unit of an applicant was not of itself the making of an application by the person included. It followed that the second appellant was not precluded from making another protection visa application in his or her own right and s 48A did not render such an application to be invalid. Justice Carr dissented. In doing so, his Honour was critical of the reasoning in Dranichnikov.
Justice Gray considered that the reasoning in Dranichnikov was correct and that the Full Court’s decision should be followed in a case where the 2001 legislative amendments did not apply, as was the case there. His Honour noted at [34] that the Minister did not ask the Court to depart from the principle in Dranichnikov, indeed the Minister relied on it.
Justice Gray stated at [30] that it was preferable to characterise the officer’s decision, which was conveyed in a letter dated 22 December 2000, as a determination pursuant to s 46(1)(d) of the Act that the second protection visa application was prevented by s 48A and was therefore not a valid application. His Honour added that such a decision was a judicially reviewable decision. He added at [31] that the decision gave rise to questions of construction, including in particular of the meaning of the word “made” in s 48A(1) (as in force at the relevant time). His Honour added that it was also necessary to consider the need to make findings of fact concerning any previous protection visa application and the application of s 48A, properly construed to the facts found.
His Honour then turned his attention at [32]ff to the issue whether the second appellant “has made” a previous application for a protection visa. His Honour said that this question contained the following steps.
(1)Consideration of the relevant requirements of the Act and the Regulations as they stood in December 2000 to the making of such an application. This required consideration of s 46(4)(b) of the Act, reg 2.07 and item 1126, which governed how the application was required to be made. This would also include consideration of whether the approved form had been used and completed in accordance with any directions on it (as required by reg 2.07(3)).
(2)Consideration also needed to be given to what was applied for, noting that cl (3)(c) of item 1126 in Sch 1 to the Regulations recognised the possibility of an application for a protection visa on the ground that the applicant claims to be a member of the family unit of a person who is an applicant for such a visa. His Honour noted the distinction between a person making a claim in his or her own right and a claim to be a member of the family unit of a person with a claim in his or her own right and that there appeared to be nothing to prevent both claims from being pursued.
(3)Importantly, at [35]-[38], Gray J identified a third step in determining whether an applicant “has made” a previous application for the purposes of s 48A. Because of their significance to the appeal, it is desirable to set out [35] to [38] of Gray J’s reasons for judgment in Soondur, which relate to the meaning of the phrase “has made” in s 48A as it then stood (emphasis added):
35Of particular relevance to a case such as the present is a further element that must be considered in determining whether an applicant “has made” a previous application. It is trite to say that an act generally only has legal effect if the mind of the person performing it accompanies its performance. The making of a purported application by a person who lacks capacity to make such an application will not be regarded as an application. At common law, infants (ie persons under the age of twenty-one) were regarded as lacking capacity to do many things, particularly to enter into contracts other than certain defined classes of contracts. Commonly, the age of majority has been reduced by statute to eighteen. There is statutory recognition of the potential incapacity of a person not of full age who has come to Australia unaccompanied by an adult. Section 6 of the Immigration (Guardianship of Children) Act 1946 (Cth) provides that the Minister shall be the guardian of the person and of the estate of such an infant. See X v Minister for Immigration & Multicultural Affairs [1999] FCA 995; (1999) 92 FCR 524. Further, Part B of form 866 contains the instruction:
To be signed by all the persons named in question 1.
If any of the applicants who should answer this question and sign the declaration is under 18 years of age or lacks legal authority to sign on their own behalf, a parent or guardian must sign on their behalf.
36Part D of the same form above the box reserved for signature, contained the following instruction:
To be signed by the applicant. If the applicant is under 18 years of age or lacks legal authority to sign on their own behalf, a parent or guardian must sign on their behalf.
37These instructions make it clear that want of full legal capacity, resulting from being under eighteen years old, is seen as relevant to the making of an application for a protection visa.
38With respect to the making of applications pursuant to the Migration Act generally, the situation seems to be that it is necessary to enquire whether a particular non-adult 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 when the application was made. See Munkayilar v Minister for Immigration & Multicultural Affairs (1997) 49 ALD 588 at 591- 592, Al Raied v Minister for Immigration & Multicultural Affairs [2001] FCA 313 at [36]-[39] and Jaffari v Minister for Immigration & Multicultural Affairs [2001] FCA 1516 at [37]. Thus, before it can be determined that a person “made” a previous application, there must be a factual enquiry as to the age of that person and as to his or her capacity to understand the nature of such an application.

This appears to be alternate reasoning to the acceptance of Dranichnikov, which did not need to discuss or apply these common law principles because of the factual situation in that case. His Honour went on to identify error in the rejection of the 2000 visa application insofar as it related to the second appellant, because her position as an individual was not considered – whether under the Dranichnikov approach, or in terms of common law principles concerning legal capacity.
Carr J dissented. Having set out the terms of s 36, and referred to s 36(2), at [91], his Honour described how he saw the factual circumstances of the second appellant in the universe created by the Migration Act:
In my opinion, the combination of the fact that the second appellant signed Pt D of the application form and the fact that it was lodged with the respondent’s Department (on 19 December 2000) had the result that the second appellant applied for a protection visa. She thus invoked Australia’s protection obligations, if any, to her under the Convention. She did so on the basis that she did not have her own claims to be a refugee, but was to be included in her mother’s application. I disagree, respectfully, with Gray J’s view that there remains any factual issue about that point. In my opinion, as the second appellant did not complete Pt C of the application form she made no claims of her own to be a refugee, but nevertheless she made an application for a protection visa. By completing Pt D but not Pt C, the second appellant was in the same situation as Mrs Dranichnikov was when she made her first application – see 400 [8] of the Full Court’s reasoning. The second appellant is, in my view, to be treated as having applied for a visa on 19 December 2000 on the basis of being a member of Ms Soondur’s family unit rather than claiming refugee status in her own right.
(Emphasis added.)
Carr J also indicated his disagreement with the reasoning of the Full Court in Dranichnikov. His Honour said, at [95]-[98]:
I disagree, with respect, with the reasoning of the Full Court in Dranichnikov, but it is not necessary to decide whether it should be followed. That is because the whole basis of the second appellant’s case is that on 19 December 2000 she had made an application for a protection visa. As I see it, there is a flaw in the Full Court’s reasoning in Dranichnikov where their Honours stated (at 401 [12]): ‘Thus the criterion in s 36(2) can only be satisfied by a person who has been determined to be a refugee as defined in Art 1A of the Refugees Convention’ (emphasis added).
That is not how I read s 36(2). Section 36(2) simply specifies as one of the criteria (includes) for a protection visa, a requirement that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention. It does not say that such a person has to have been determined to be a refugee.
The term ‘protection obligations’ is not defined in the Act and is not a term used in the Convention. Accordingly, in my view, there is nothing in the Act which requires s 36(2) to be read restrictively by confining the ‘protection obligations’ referred to in that subsection to ‘protection obligations [to a person] as a refugee’, as the Full Court did in Dranichnikov (see also 401-402 [16] of their Honours reasons set out above). That is, there seems to be no logical reason for not extending the meaning of the expression ‘protection obligations’ under the Convention to include protection obligations to, for example, the children of a refugee. The children do not have to establish the same likelihood of persecution as may be visited upon, say, their father or mother. The scheme of the Act and the Regulations is such that it makes provision for the grant of protection visas to such family members even where they make no claims to be refugees. But it is not necessary to the determination of this appeal to decide whether the reasoning in Dranichnikov was thus flawed (as I think, with respect, it was). That is because, in my view, the second appellant’s application on 19 December 2000 for a protection visa was doomed to failure from the outset.
When persons complete Pt D of an application for a protection visa, they are, in my opinion, quite clearly invoking a protection obligation (on Australia’s part) to them under the Convention, as members of the family of a refugee. But, at the risk of being repetitious, they are not claiming refugee status for themselves.
I would respectfully agree with the reasoning of Carr J in these passages. It is consistent with, and supports, the structure of the legislative scheme to which I have given greatest prominence.
Notwithstanding my agreement with the reasoning of Carr J, if the ratio in Soondur was applicable, sitting as a member of another Full Court, I should follow that ratio, unless persuaded the reasoning which led to it is plainly wrong: Nguyen v Nguyen [1990] HCA 9; 169 CLR 245 at 268-269, Transurban City Link Ltd v Allan [1999] FCA 1723; 95 FCR 553 at 560-561; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; 150 FCR 214 at [187]-[192] per Allsop J. I do not consider the question whether Soondur is plainly wrong arises, and in any event, it was not addressed by the parties.
In my opinion, Soondur can and should be distinguished from the circumstances in the present appeal. It did not concern s 48A as it stood after the post-Dranichnikov amendments.
I consider that the course of legislative amendments after Dranichnikov, taken together with the features of the legislative scheme that I have described, demonstrates that after Dranichnikov, if not before (a matter on which I need not express a concluded view), the Parliament made it clear that each individual non-citizen must apply for and be granted a visa to become a lawful non-citizen (whether child or adult, with or without legal capacity), and must meet the criteria prescribed.
The particular series of amendments concerning protection visa applications by members of a family unit, and the circumstances they have been intended to address are, as the Minister submits at [32]-[33] of his written submissions, consistent with the initial post Dranichnikov amendments in 2001.
The Federal Circuit Court in the current proceeding was correct to distinguish Dranichnikov. For the reasons I have given above, a non-citizen who is a “member of the family unit”, whether adult or minor, has “made” an application for a protection visa within the terms of s 48A(2)(aa). The argument that was available and accepted in Dranichnikov and Soondur is no longer available.
The mischief sought to be corrected, as outlined in the Explanatory Memorandum set out at [108] of Griffiths J’s reasons, and omitting the emotive word “misuse”, is (as the Minister submits) apparent in the current circumstances. The first appellant applied for a protection visa as a member of her mother’s family unit, relying on her mother invoking Australia’s protection obligations directly. The same is true of her brother, the second appellant. That they were children at the time did not relieve them, as non-citizens, from having to apply for a visa and that is what occurred. The scheme gives no different legal or statutory effect to a visa application made by a minor than it does to a visa application made by an adult, nor to one made by a non-citizen without legal capacity. Yet now, the appellant mother applies as a member of her daughter’s family unit, with the daughter seeking to invoke Australia’s protection obligations directly. The appellant son did not seek to make his own claims in 2011, but in 2014, he sought to make claims essentially the same as those of the first appellant. Nevertheless, on the appellants’ arguments, he may well be able to seek a protection visa for a third time if he elects to argue his mother made the second protection visa application and the claims attributed to him in it, without his knowledge or informed consent. The circumstances of this appeal are an example of the mischief to which the Dranichnikov amendments were directed, because the same non-citizen seeks to apply twice for a protection visa, by-passing the legislative policy evinced by the presence of personal ministerial discretion in s 48B.
SZGME
SZGME was a case where there was a single application form used in respect of a daughter, her mother and her father. Initially the daughter made claims for protection and the form stated the mother and father did not. Subsequently, documentation was signed by the father and mother in which they did seek to make their own claims, but this did not reach the delegate before a decision was made.
Black CJ and Allsop J set out the course of events at [64]-[66]:
The daughter applied for review to the Tribunal. The father and mother were referred to in the application for review as ‘persons included in the decision made by the Department...’. In support of this application, a joint statement signed by all three and the Part C documents signed by the mother and father were submitted. All three attended the hearing and gave evidence. It was clear that all three were urging the Tribunal to hear the individual claims of each.
The Tribunal’s decision made on 20 October 1998 was in the following terms:
The Tribunal affirms the decision not to grant a protection visa.
We do not place any significance in the use of the singular number in this sentence. All three had applied for protection visas. All three had urged the Tribunal to grant protection visas to them all.
The Tribunal treated each as having claims that had been pressed. Between pp 10 and 13 of its reasons, the Tribunal dealt with each applicant separately and evaluated the claims of each. The same conclusion was drawn about each:
The Tribunal is not satisfied that [Ms; Mrs; Mr ...] has a well-founded fear of persecution for any Convention reason should [she/he] return to Armenia now or in the reasonably foreseeable future.
And then at [72]-[73]:
Submissions were put on behalf of SZGME that she made no application for a protection visa unless and until she filed with the Department her own separate claims. That is not so. The relevant form for a Subclass 866 visa, and reg 866 at the relevant time which set out the criteria for a protection visa, made clear that someone is an applicant for a protection visa even if he or she is a member of the same family unit as someone who makes specific claims under the Refugees Convention. We will return to this point in a little more detail later. If the mother and the father did not make a valid application it was because they had provided neither Part C nor Part D, and taking into account the Acts Interpretation Act 1901 (Cth), s 25C.
If there was a valid application for a protection visa by the mother as a family unit member, it was refused by the delegate. The refusal of this application was sought to be reviewed. In such circumstances, it is difficult to see why SZGME could not, before the Tribunal, change the basis for her claim to such a visa from being a member of a family unit to her own fears of persecution. We will return to this point in a little more detail later.
(Emphasis added.)
What these passages make clear, in my opinion, is that their Honours considered each member of the family unit was making an application for a protection visa. Their Honours went on to find (at [86]) that there was nothing in the Regulations to preclude the mother and father, as members of the family unit making their own claims for protection at the review stage before the Tribunal, and this did not affect the validity of the family unit application.
Moore J disagreed with the majority that s 48A(1) was restricted to valid applications. However his Honour’s conclusion (at [185]) is equally relevant to the issues in the present appeal:
The appellant seeks an order setting aside the Tribunal’s decision but does not challenge the delegate’s decision. As noted earlier, these proceedings are brought to secure the appellant’s right to make an application for a protection visa unconstrained by s 48A. On the view I take of the operation of that section, it is sufficient that the delegate refused an application made by the appellant of the type comprehended by s 48A(2). The appellant made such an application which was refused. The better view of the application lodged (and this is the way it was understood by the delegate) is that the appellant’s daughter can be taken to have made the application on the footing that it was only she who alleged Australia owed her protection obligations. Nonetheless the application was advanced on the basis that appellant was included as a dependent member of the same family unit, would satisfy a criterion for a protection visa because she possessed those characteristics, and would be granted a protection visa if the daughter was granted one. That circumstance is comprehended by s 48A(2)(ab).
(Emphasis added.)
At [14], Black CJ and Allsop J described s 48A in terms which are not inconsistent with the view I have taken, although their Honours were dealing with a different aspect of s 48A – namely, whether the first visa application needed to be a valid application.
Whilst the purpose, no doubt, of s 48A was to prevent repeated applications, that was in the closely regulated environment to which we have referred. The Court in Li 103 FCR 486 at [77]-[79] recognised the policy that can be seen to lie behind the formal requirements and, in particular, that which lies behind the crucial regulation in Li (and here), reg 2.10(1)(b), that the application form and its supporting material be given to the Department. The Court said the following (at [79]):
Contrary to the Minister’s submissions, this is not a case for the application of the maxim ‘lex non praecipit inutilia’. There may be debate about the wisdom of a legislative scheme that places so much emphasis on adherence to formal requirements. But given the assumptions underlying the scheme, there is obvious utility in requiring all the elements going to make up a valid application to take place at an office of Immigration. In the absence of such a requirement, there is a risk of documents going astray and of decisions being made (or not being made) without all relevant information being placed before the decision maker. If an applicant can complete a prescribed form in stages (as the legislation has been construed to permit), there are advantages in ensuring, even on pain of rendering an application invalid, that all components of a valid application form are provided to an office of Immigration.
(Emphasis added.)
This, of course, is only one aspect of the regime required by Subdiv AA and the Regulations for the validity of an application, but it suffices to illustrate that the detailed and prescriptive regime chosen by Parliament can be seen to have purposes that support the requirement for valid applications. Put more broadly, the Parliament intended that both the applicant and the Minister would be required to act strictly according to law and the applicant would be prevented from making a further application after the lawful undertaking of the regulated and ordered, lawful decision-making process.
(Emphasis added.)
I do not consider that their Honours’ observations in SZGME are irrelevant because the members of the family unit concerned were adults at the time the application was first made (the daughter was 20 at that time – see [84] of the Full Court reasons). As I have said, except for specific circumstances (see, for example, reg 2.08 in relation to newborn children) the legislative scheme does not purport to treat applicants for a visa who are minors any differently in terms of the need to apply for, and be granted, a visa.
In summary, there is nothing in the earlier authorities of this Court which leads me to reach a different conclusion on the appeal.
ANSWERING THE SEPARATE QUESTION
I agree with Robertson, Griffiths and Wigney JJ that it was unnecessary for the separate question, as formulated, to focus on the Full Court decision in Kim, rather than simply on the proper construction of s 48A(1) and its application to the circumstances of the appellants’ case. The focus on Kim appears originally to have come from the appellants’ migration agent who, in his letter accompanying the second protection visa application sought to draw a parallel, in terms of lack of awareness, between the first appellant at the time of the first protection visa application and the appellant in Kim.
Although it has been subject to criticism, this Court has not re-formulated the separate question stated and answered by the Federal Circuit Court. The parties have not been heard on what form any different question should take. In my respectful opinion, it would not be appropriate at this stage for the Court to do other than consider the appeal on the basis of the correctness or otherwise of the answer given by the Federal Circuit Court to the question as stated.
The Federal Circuit Court answered the stated question “no”. I consider that answer was correct because on a proper construction of s 48A(1), a non-citizen who was included as a member of the family unit of a another non-citizen who invoked Australia’s protection obligations was a person who applied for a protection visa and therefore “has made” an application for a protection visa, reading s 48A(1) with s 48A(2).
The appeal should be dismissed, with costs.

I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.
Associate:
Dated: 7 June 2017
REASONS FOR JUDGMENT
WIGNEY J:

I have had the benefit of reading in draft form the reasons for judgment of Griffiths J and the brief concurring reasons of Robertson J. I agree with the reasons for judgment of Griffiths J and the orders he proposes. I also agree with the additional reasons of Robertson J. I wish to add but a few brief observations.
It was common ground between the parties that the first protection visa application was a valid visa application insofar as both the son and daughter were concerned. The basis upon which the parties agreed that the first application was valid appeared to be that, at the time the application was lodged, the son and daughter did not have the competence or capacity to make informed decisions concerning the making of an application for a protection visa. In accordance with common law principles, it followed that their mother, in her capacity as the guardian of her children, had the power or authority to make decisions and act on their behalf in lodging the visa application: Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15; 175 CLR 218 at 235-239; Re Woolley; Ex parte Applicants M276/2003 [HCA] 49; 225 CLR 1 at [97]-[104], [152]-[156].
Where the parties differed was what followed, in terms of the application of s 48A of the Migration Act 1958 (Cth), from the fact that the first application was a valid application.
The Minister’s case, in short, was that where a parent has lawfully lodged a protection visa application on behalf of their child who lacks competence or capacity, the child “has made” an application for a protection visa for the purposes of s 48A. He submitted that the Migration Act does not distinguish between a visa application made by a non-citizen, and a visa application made on behalf of a non-citizen. The reference in s 48A to the circumstance that a non-citizen has made an application for a protection visa conveys no more than that “the non-citizen was the person by whom …. an earlier, valid application is taken to have been made”.
I do not agree. In my opinion, the considerations referred to by Robertson J militate against the construction favoured by the Minister. It is one thing to say that a protection visa application has been validly made by a parent on behalf of a child; it is another thing to say that in those circumstances the child “has made” the protection visa application. I am unable to see anything in the text, context, purpose or legislative history of s 48A to support the proposition that the meaning of the expression “has made” should be extended such that it encompasses the making of a visa application on behalf of a child or other person who lacks competence or capacity.

Like Griffiths J, I also see force in the reasoning of Gray J (with whom Goldberg J relevantly agreed) in Soondur v Minister for Immigration and Multicultural Affairs [2002] FCAFC 324; 122 FCR 578 at [35]-[38]. That reasoning would tend to suggest that a protection visa application made by a parent on behalf of their child who lacks competence or capacity is not made by the child for the purposes of s 48A. At the very least, before a finding can be made that a person “made” a previous application for the purposes of s 48A, “there must be a factual inquiry as to the age of that person and as to his or her capacity to understand the nature of such an application”: Soondur at [38].
The appellants’ case, both below and on appeal, focussed almost entirely on whether the son and daughter knew that their mother had lodged a protection visa application on their behalf. They submitted, in effect, that the words “has made” in s 48A should be construed as meaning “has validly and knowingly made”. They called in aid, in support of that submission, the judgment of the Full Court in Minister for Immigration and Border Protection v Kim [2014] FCAFC 47; 221 FCR 523, a case which concerned the different, though superficially similar, provision in s 48 of the Migration Act. They contended that the son and daughter could not be found to have made the first protection visa application if they did not know that their mother had lodged that application on their behalf.
That was not the correct approach to take to the question of construction of s 48A, or the resolution of the proceeding at first instance. That approach appears to have led the primary judge to resolve the proceeding by posing and answering a separate and preliminary question about whether the conclusion reached by the Full Court in Kim in respect of the proper construction of s 48 “applies equally” to s 48A. I agree with Griffiths J that the separate question posed by the primary judge was expressed too narrowly and was in any event a distraction. It meant that, instead of squarely addressing the construction of s 48A, which was the central legal issue in the proceeding, the parties’ submissions, and the primary judge’s reasons, focussed almost entirely on the supposed similarities and differences between ss 48 and 48A and whether the reasoning in Kim was applicable to the construction of s 48A. It resulted in the appellants’ appeal ground and written submissions being devoted to the question of whether the primary judge erred in concluding that the reasoning in Kim was not applicable to the construction of s 48A. It also led the Minister to file a notice of contention and submit that Kim was plainly wrong. That was and is a false issue.
The question of knowledge may be important in some cases in determining whether an applicant for a protection visa has made an earlier visa application for the purposes of s 48A of the Migration Act. For example, a protection visa application signed and lodged by a parent on behalf of their child who was 17 years old, and who plainly had the capacity to understand the nature of such an application, might be found to have been made by the child for the purposes of s 48A if it was shown that the child knew and understood that the application was being lodged on their behalf. If, on the other hand, the 17 year old child was estranged from their parent and did not know anything about the protection visa application, it could scarcely be said that the child had made the application for the purposes of s 48A. Indeed, as the Minister acknowledged during argument, such an application would not be a valid application and could not attract the operation of s 48A.
It is not, however, always meaningful, let alone determinative, to approach the question of whether s 48A was engaged in the circumstances by asking whether the child on whose behalf an application was lodged knew about the application. For example, if a parent lodged a protection visa application on behalf of a 1 year old child, it would not be meaningful to inquire into whether the child knew that the application was being lodged on their behalf. Indeed their knowledge would essentially be irrelevant because the child would not in any event have the capacity to understand the nature of such an application.
On the Minister’s construction of s 48A, the 1 year old child in the example just given would be taken to have made the protection visa application, despite the fact that the child plainly would not have had the capacity to appreciate that an application was being lodged on their behalf, let alone understand the nature of such an application. That is because, so the Minister’s argument went, the parent had the power and authority to lodge the application on behalf of the child and the words “has made” in s 48A convey no more than that the child was the person by whom a valid application is taken to have been made. For the reasons already given, that contention and that construction of s 48A has no merit and should be rejected.
In the end result, the primary judge misconstrued s 48A and was wrong to dismiss the appellants’ application on the basis of the separate question. It is unnecessary to consider the Minister’s notice of contention concerning Kim. As Griffiths J has explained, it will be necessary for the matter to be remitted to the Federal Circuit Court of Australia so that, in accordance with Soondur, there can be a factual inquiry as to the knowledge and capacity of the son and daughter to have understood the nature of the first protection visa application which was lodged on their behalf.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.
Associate:
Dated: 7 June 2017

Appeal from:	SZVBN & Ors v Minister for Immigration & Anor [2015] FCCA 2977
File number:	NSD 527 of 2016
Judges:	SIOPIS, ROBERTSON, GRIFFITHS, MORTIMER AND WIGNEY JJ
Date of judgment:	7 June 2017
Catchwords:	MIGRATION – whether ss 48A and 46(1)(d) of the Migration Act 1958 (Cth) as then in force applied to render not valid a second application for a protection visa concerning a mother and her young daughter and young son in circumstances where an earlier protection visa application involving those three persons had been assessed and refused PRACTICE AND PROCEDURE – whether preferable to determine appeal by reference to the order made by the Federal Circuit Court of Australia to dismiss the review application as opposed to the separate question which was defective Held: appeal allowed – matter remitted to Federal Circuit Court of Australia for reconsideration according to law and to make appropriate findings of fact concerning the mother’s parental authority and the legal capacity of her children
Legislation:	Immigration (Guardianship of Children) Act 1946 (Cth) Migration Act 1958 (Cth) ss 4, 5, 29, 30, 31, 36, 45, 46, 47, 48, 48A, 48B, 50, 56, 57, 65, 78, 83, 91E, 91F, 98 Migration Amendment Act 2014 (Cth) Migration Amendment (Complementary Protection) Act 2011 (Cth) Migration Legislation Amendment Act (No 1) 2014 (Cth) Migration Legislation Amendment Act (No 6) 2001 (Cth) Migration Reform Act 1992 (Cth) ss 4, 29, 30, 31, 36, 45, 46, 47, 48, 48A, 48B, 50, 65, 98 Migration Regulations 1994 (Cth) regs 1.03, 1.12, 2.07, 2.08, 2.08A, 2.08B, 2.09, 2.10, Sch 1 cl 1401, Forms 866B, 866C, 866D, Sch 2 cl 866 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
Cases cited:	Al Raied v Minister for Immigration and Multicultural Affairs [2001] FCA 313 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27 Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378 Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; 201 CLR 293 Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; 184 CLR 453 Dranichnikov v Minister for Immigration and Multicultural Affairs [2001] FCA 769; 109 FCR 397 Gill v Minister for Immigration and Border Protection [2016] FCAFC 142 Grain Elevators Board (Vic) v Dunmunkle Corp [1946] HCA 13; 73 CLR 70 Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348 Jaffari v Minister for Immigration and Multicultural Affairs (No 2) [2001] FCA 1516; 113 FCR 524 Master Education Services Pty Limited v Ketchell [2008] HCA 38; 236 CLR 101 Minister for Immigration and Border Protection v Kim [2014] FCAFC 47; 221 FCR 523 Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127; 244 FCR 366 Minister for Immigration and Citizenship v Mon Tat Chan [2008] FCAFC 155; 172 FCR 193 Minister for Immigration & Multicultural Affairs v Li [2000] FCA 1456; 103 FCR 486 Minister for Immigration and Multicultural and Indigenous Affairs v Kim [2004] FCAFC 329; 141 FCR 315 NAWZ vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199 Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; 218 CLR 273 Nguyen v Nguyen [1990] HCA 9; 169 CLR 245 Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; 255 CLR 179 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; 211 CLR 441 Re Woolley; Ex parte Applicants M276/2003 [2004] HCA 49; 225 CLR 1 Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) [1992] HCA 15; 175 CLR 218 Soondur v Minister for Immigration and Multicultural Affairs [2002] FCAFC 324; 122 FCR 578 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; 150 FCR 214 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189 SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235 SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393 SZGMEv Minister for Immigration and Citizenship [2008] FCAFC 91; 168 FCR 487 Transurban City Link Ltd v Allan [1999] FCA 1723; 95 FCR 553
Date of hearing:	10 March 2017
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	282
Counsel for the Appellants:	Mr O Jones
Counsel for the Respondents:	Mr G Kennett SC with Mr B Kaplan
Solicitor for the Respondents:	Sparke Helmore

JUDGES:	SIOPIS, ROBERTSON, GRIFFITHS, MORTIMER AND WIGNEY JJ
DATE OF ORDER:	7 JUNE 2017