SZVBN v Minister for Immigration (No.2)
[2018] FCCA 1097
•30 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVBN & ORS v MINISTER FOR IMMIGRATION (No.2) | [2018] FCCA 1097 |
| Catchwords: MIGRATION – Review of decision of an officer to reject protection visa application as invalid – proceedings remitted from the Federal Court for rehearing following successful appeal – s.48A of the Migration Act 1958 (Cth) considered – child applicants previously included as family group members in an earlier protection visa application – whether the child applicants were competent to make the earlier application considered. |
| Legislation: Evidence Act 1995 (Cth), s.140 Migration Act 1958 (Cth), ss.46, 48, 48A, 476 Migration Legislation Amendment Act (No.6) 2001 (Cth) |
| Cases cited: Chien v Minister for Immigration [2013] FCCA 218 Dranichnikov v Minister for Immigration (2001) 109 FCR 397 Minister for Immigration v SZGUR (2011) 241 CLR 594 Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 SZVBN & Ors v Minister for Immigration [2015] FCCA 2977 SZVBN v Minister for Immigration [2017] FCAFC 90 |
| First Applicant: | SZVBN |
| Second Applicant: | SZVBO |
| Third Applicant: | SZVBP |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2550 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 23 April 2018 |
| Delivered at: | Sydney |
| Delivered on: | 30 May 2018 |
REPRESENTATION
| Counsel for the Applicants: | Mr O Jones |
| Counsel for the Respondent: | Mr B D Kaplan |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Court declares that s.48A of the Migration Act 1958 (Cth) did not bar the protection visa application made on 12 August 2014 insofar as it relates to the applicant SZVBO.
The application made on 15 September 2014 is otherwise dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2550 of 2014
| SZVBN |
First Applicant
| SZVBO |
First Applicant
| SZVBP |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction and background
There is before the Court an application for judicial review under s.476(1) of the Migration Act 1958 (Cth) (Migration Act) of a decision by an officer of the Minister’s Department (officer). The officer rejected as invalid under s.48A of the Migration Act an application made on 12 August 2014 by the applicants for protection (Class XA) visas (second protection visa application). The basis for the officer’s invocation of s.48A of the Migration Act was a previous application made on 17 November 2011 (first protection visa application).
By their judicial review application filed on 15 September 2014, as amended on 8 October 2015, each of the applicants, SZVBN (daughter), SZVBO (son) and SZVBP (mother), seeks judicial review of the determination made by the officer on 15 August 2014 that the protection visa application lodged with the Minister’s Department on 12 August 2014 was invalid.
Background facts relating to this matter are otherwise set out in my earlier judgment in these proceedings.[1]
[1] SZVBN & Ors v Minister for Immigration [2015] FCCA 2977
The present proceeding arises on remittal from the Full Court of the Federal Court in SZVBN v Minister for Immigration.[2]
[2] [2017] FCAFC 90
The issue in the present case is whether any of the applicants’ protection visa applications are invalid by reason of s.46(1)(d) of the Migration Act because they are prevented by s.48A, in force as at 12 August 2014. In the light of the judgment of the Full Federal Court in SZVBN (Robertson, Griffiths and Wigney JJ; Siopis and Mortimer JJ dissenting), the answer to that question depends on whether each applicant had capacity to make the application for himself or herself.
The question to resolve is a factual one. That is, did any of the applicants have relevant knowledge and understanding of the first protection visa application? If the question is answered in the negative, then there would be no basis for the Minister’s Department to rely upon s.48A of the Migration Act, and the judicial review application would be successful.
Although not formally conceded by the applicants, it is not seriously in dispute that the mother (SZVBP) had full capacity and had full knowledge and understanding of the first protection visa application. No evidence was led that could support any contrary finding. The issue to resolve concerns the knowledge and capacity of the applicant daughter (SZVBN) and the applicant son (SZVBO).
Before dealing with the evidence presented in relation to the capacity of SZVBN and SZVBO, it is desirable to reflect on the judgment of the Full Federal Court, which set aside orders [2] and [3] made on 11 December 2015, which were in the following terms:[3]
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] FCAFC 47; (2014) 221 FCR 523 concluded was required 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), [apply] 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] Order 4 dismissing the judicial review application was also set aside
3. The answer to the question is “no”.
The ratio decidendi of the majority judgments in the Full Court is that, where an earlier protection visa application has been made on behalf of a child by his or her parent, and the child did not have capacity to make that application himself or herself, he or she will not have “made” an application for the purposes of s.48A(1) of the Migration Act, even if it had been made validly. In this connection, it is noteworthy that none of the majority judges was content to proceed on the agreement of the parties both in this Court and in the Full Court that the first protection visa application made in relation to the daughter and the son was valid;[4] that is, that it was a valid exercise of parental authority by the mother and, as Mortimer J (dissenting) observed at [152], complied with the requirements of s.46(1) of the Migration Act and the regulations made thereunder.[5]
[4] SZVBN v Minister for Immigration [2017] FCAFC 90 at [2], [13] per Robertson J, [86], [89], [141] per Griffiths J, [271], [275]-[276], [281] per Wigney J
[5] Namely, regulation 2.07 of, and item 1401 of Schedule 1 to, the Migration Regulations 1994 (Cth)
In the present proceeding, while the validity of the first protection visa application was, at least potentially, a live issue, the question was deferred until after the evidence was taken. Following that evidence, the issue was not pursued by the parties. I have proceeded on the basis that the first protection visa application was valid.
It is convenient to summarise the key principles emerging from the majority judgments in the Full Court. They are as follows.
First, s.48A of the Migration Act, as in force on 12 August 2014, directs attention to the person who “has made” a previous application for a protection visa. That “direct[s] attention to the question whether the relevant person had the necessary competence to ‘make’ … an application”.[6]
[6] SZVBN at [89] per Griffiths J
In the case of a dependent child, whether or not a parent or guardian has the authority to make an application for a protection visa on their behalf will require “an assessment to be made of whether the authority of the parent or guardian was affected at the relevant time by any emerging legal competence or capacity on the part of the child”.[7] That question, in turn, requires consideration of matters such 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.”[8]
[7] SZVBN at [89] per Griffiths J
[8] SZVBN at [89] per Griffiths J
Justice Robertson agreed with Griffiths J’s reasons at [2] and, at [13], held that the text and context of s.48A did not justify expanding the meaning of “made” so as to attribute the making of an earlier application to a child when it was made in his or her name by a parent. In a similar vein, Wigney J (who also expressed agreement at [271] with the reasons of Griffiths J) endorsed the view 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.”[9] At [281], Wigney J rejected the view that, where a parent has the power and the authority to lodge an application on behalf of his or her (infant) child, 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.
[9] SZVBN at [276] per Wigney J
Secondly, the amendments made to s.48A by the Migration Legislation Amendment Act (No.6) 2001 (Cth), which reversed the effect of Dranichnikov v Minister for Immigration,[10] did not intend to address any issue concerning the legal competence of a dependent child to “make” an application for a protection visa for the purposes of s 48A.[11]
[10] (2001) 109 FCR 397
[11] SZVBN at [2] per Robertson J, [88], [95]-[96], [105], [109]-[110], [113], [116] per Griffiths J, [271] per Wigney J
Thirdly, the majority’s construction of s.48A in Soondur v Minister for Immigration[12] should be adopted and applied to the present case.[13] There, it was 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.[14]
[12] (2002) 122 FCR 578 per Gray J at 590-591 [35]-[38] and Goldberg J at 604 [109]
[13] SZVBN at [2], [9] per Robertson J, [88], [101], [103], [139] per Griffiths J, [271], [276], [282] per Wigney J
[14] Soondur at 591 [38] per Gray J
Fourthly, the proper construction of s.48A and its application to the circumstances of the present case are not assisted by the reasoning in Minister for Immigration v Kim[15] as that case dealt with a “differently-worded statutory provision with a different scope and history”, namely, s.48.[16]
[15] (2014) 221 FCR 523
[16] SZVBN at [88], [131] per Griffiths J; see also at [2] per Robertson J, [271], [277]-[278] per Wigney J
Fifthly, this Court must make appropriate findings concerning the legal competence and understanding of the applicants when the first protection visa application was made, including whether the children had knowledge of the fact that they had been included in the application.[17]
[17] SZVBN at [2], [9] per Robertson J, [88], [141] per Griffiths J, [271]. [276], [282] per Wigney J
Finally, in dealing with the evidence in this case, it is necessary to bear in mind [141] of the judgment of Griffiths J, with which Robertson and Wigney JJ agreed:
For the purposes of considering and determining the possible application of s 48A of the Act as in force at the relevant time, appropriate findings will need to be made concerning the capacity and understanding of the first and second appellants when the first protection visa application was made, including whether they had any knowledge of the fact that they had been included in the application. Presumably, findings will need to be made concerning the children’s appreciation and understanding as to the nature and implications of the first protection visa application generally, as well as their capacity to comprehend the Australian Values Statement and Applicant’s declaration in items 28 and 30 of Part D, both of which were signed personally by the first and second appellants respectively. This will necessarily involve findings being made as to the circumstances in which their signatures came to appear in these parts of Part D and how that apparent fact can be reconciled with their denial of any knowledge on their part that they were included in the first protection visa application. It may be that these inquiries reveal that some of these events occurred because of the requirements of reg 2.07(c), but currently that is mere speculation. Absent relevant findings of fact, it is entirely unclear at present whether or not there is a proper factual foundation for s 48A to apply to the particular circumstances of the first and second appellants.
The evidence
The applicants rely upon affidavits made by SZVBN and SZVBO. Both were cross-examined on their affidavits.
The Minister relies upon the affidavit of Liam Dennis made on 12 October 2015 and the affidavit of Sura Moonemalle made on 19 October 2015. Neither of the deponents were required for cross-examination.
The Minister also subpoenaed to give oral evidence the applicants’ former solicitor and migration agent (Christopher Levingston) who had represented all three applicants at the time they applied for protection visas on 17 November 2011.
The evidence of Mr Levingston
Mr Levingston’s oral evidence appears on pages 22-31 of the transcript. He was a clear and confident witness, although his recall, given the passage of time, was limited. He had no independent recollection of how the child applicants came to be included in the first protection visa application, although he accepted he had prepared the bulk of the content of it.[18] Mr Levingston conceded that he had mistakenly required SZVBN and SZVBO to sign the Australian Values Statement in the visa application form, which was not required to be signed by a person under the age of 18 years.[19] Mr Levingston was present when the documents were signed. He recalls meeting the children but he cannot recall if this was in the presence of their mother or separately. He made no assessment of the capacity of the children.[20] Mr Levingston stated that he thought he would have taken notes of his conference with the applicants. Those were called for, but could not be found. They have probably been destroyed.
[18] Transcript (T) 23
[19] T 26-27
[20] T 27-28
Mr Levingston recalled that he met the applicants on more than one occasion, and that on the first occasion, SZVBP was alone. He said that it was his practice to have a child of a non English speaking adult applicant interpret if the child was more proficient in English than the parents, but he cannot recall whether SZVBN or SZVBO interpreted at any stage.[21]
[21] T 29-30
SZVBN
The applicant daughter was born on 20 June 1998. At the time of the trial of this matter on 23 April 2018, she was 19 years of age. She is currently undertaking tertiary studies in nursing. She gave evidence as to her education history in Australia. She was born in South Korea and came here when she was five. She deposes as to her recollection of the completion of the first protection visa application. At that time she was 13 years of age. Her evidence under cross-examination appears at pages 32-53 of the transcript.
When shown the second protection visa application, the applicant daughter recognised the document and recalled filling it out with her then advisor, Adrian Joel. She acknowledged her signature on the document. She recalled interpreting for her mother on the occasion of completion of that document. She knew it was an application for protection. She knew why protection was being sought.[22]
[22] T 39-43
The applicant daughter’s evidence in relation to the first protection visa application was quite different. She recalls travelling into Sydney city with her mother to see a lawyer and that her brother probably came with them. Her mother spoke to the lawyer and she was told to sign documents. She acknowledged her signature on the documents but said that she wrote her name rather than “using a signature”, as we understand that term. She denied that the lawyer explained the document or the purpose of the application. She conceded, however, that she might have been aware that the application might have had something to do with staying in Australia.[23]
[23] T 43-47
The applicant daughter, under cross-examination, was shown her affidavit made on 5 December 2014[24] in the earlier proceeding before this Court. She acknowledged her statement in that affidavit that she thought what she was signing might have had something to do with a residency application or could have had something to do with a student visa.[25]
[24] T 49
[25] T 47-48
The applicant daughter gave evidence that she was aware at this stage that she was in a different position to Australian citizens. At the time of the first protection visa application, she had recently commenced high school which had proved to be a significant issue for her family. They had encountered difficulty in having the applicant daughter accepted into high school and this was a concern for her. The applicant daughter stated that a friend had assisted the family to have her admitted into high school. In her affidavit at [9], the applicant daughter stated that a family friend had attended the conference with the lawyer when the first protection visa application was signed. In response to a question from me, she agreed that this was the same family friend who had assisted in gaining her admittance to high school. In response to a further question from me, she accepted that there was probably in her mind a connection between the documents she signed and the problem she had encountered being admitted to high school.[26]
[26] T 49
SZVBO
The applicant son was born in South Korea on 2 October 2002. At the time of the trial of this matter he was 15 years of age and undertaking year 10 at high school. He came to Australia when he was one. At the time of the first protection visa application, he was nine years of age. He deposes as to his lack of recollection of the completion of the first protection visa application. His evidence under cross-examination appears at pages 55-67 of the transcript.
The applicant son is interested in mathematics and sport, particularly rugby and touch football. He was able to give reasonably clear evidence about the physical environment in which he currently lives and has lived since around 2011, although his recall deteriorated the further back in time he was taken.
The applicant son gave evidence that he was unaware in 2011 of any limitation on his stay in Australia. He thought that he was the same as anyone else. The issue was not discussed with his mother or his sister. He recalls seeing and signing the second protection visa application made in 2014 and recalls seeing Adrian Joel, who acted for the applicants in relation to that visa application. He thought that the form was completed in order to obtain some sort of “pass” to continue to live in Australia. He wrote, rather than signed, his name on that document. He did not, at that time, discuss the significance of the form with his mother.[27]
[27] T 62-64
The applicant son was uncertain whether he could remember going into the city in 2011 to see anyone from the Minister’s Department. He has heard of Mr Levingston but cannot recall seeing him. He does not recall seeing the first protection visa application previously. He acknowledged that the handwritten name purporting to be his written on that form is his but he has no recollection of writing his name. Although he understood by 2014 that the form had something to do with staying in Australia, he had no such knowledge in 2011.[28]
[28] T 65-66
Consideration of the evidence
As noted at the outset, the present case involves an application for judicial review of the determination made by the officer in respect of the application for protection visas purportedly made by three applicants on 12 August 2014: the daughter, the son and the mother.
As in every application for judicial review, the applicants bear the onus of establishing jurisdictional error on the part of the Departmental officer.[29] That requires each applicant to establish that he or she did not have the requisite legal competence and understanding of his or her first protection visa application as at 17 November 2011. That fact must be established by each applicant on the balance of probabilities.[30]
[29] Minister for Immigration v SZGUR (2011) 241 CLR 594 at 616 [67]-[68] per Gummow J, 623 [91] per Heydon J, 623 [92] per Crennan J
[30] Evidence Act 1995 (Cth), s.140(1)
Children are, as McHugh J said in Re Woolley; Ex parte Applicants M276/2003:[31]
presumed to be incompetent at birth and gradually to acquire legal competence for various purposes at different stages of their development until they reach the age of majority (eighteen), in which case they are presumed to have full legal capacity.
[31] (2004) 225 CLR 1 at 40 [102]
His Honour also said that “[t]he capacity of the child varies according to the gravity of the particular matter and the maturity and understanding of that child.” Importantly, however, children are not presumed incompetent until they attain the age of majority. That has important ramifications in so far as the onus of proof is concerned: the applicants bear the onus of showing that they did not have the requisite understanding and competence as at 17 November 2011.[32]
[32] cfChien v Minister for Immigration [2013] FCCA 218 at [41] per Judge Jarrett, in which his Honour proceeded on the basis that it was for the applicant to demonstrate that the child lacked capacity, not for the Minister to show that the child had capacity
Having heard the evidence of SZVBO, I am left in no doubt that in 2011, he did not have any understanding of the protection visa application on which he wrote his name and no competence to make that application. Although there is some room for doubt, I am satisfied that he was competent to make the second protection visa application in 2014. He understands now that the document bore upon his entitlement to remain in Australia. While his understanding has developed over time, there is sufficient evidence to find that a level of competence had developed by 2014.
The position of SZVBN is different. There is no question at all about her capacity and understanding in 2014. There is a question about her capacity and understanding in 2011. I am not satisfied, however, that she lacked understanding of the essential nature of the first protection visa application and, in my view, she was competent to make that application. She knew that the application may have had something to do with the family’s residence in Australia and their right to remain here. This had personally impacted upon her because of her difficulty gaining admittance to high school. She was well aware of her father’s difficulties, although she was probably not aware of the precise reasons why protection was sought. To my mind, however, the critical factor was the applicant daughter’s awareness that she was making an application in order to remain in Australia.
Conclusion
I conclude that SZVBO has succeeded in establishing that he lacked the necessary knowledge and competence to make the first protection visa application in 2011. It follows, that he was not prevented by s.48A of the Migration Act from making the second protection visa application in 2014. I will make a declaration to that effect.
I also find that SZVBN and SZVBP had the requisite knowledge and capacity to make the first protection visa application in 2011 and, hence, the officer was entitled to invoke s.48A of the Migration Act in respect of their second protection visa applications in 2014. Their application to this Court should be dismissed.
I will hear the parties as to costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 30 May 2018
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