SZVFL v Minister for Immigration
[2017] FCCA 1031
•19 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVFL & ORS v MINISTER FOR IMMIGRATION | [2017] FCCA 1031 |
| Catchwords: MIGRATION – Application for judicial review – applicant child included in a valid application for a Protection visa made on his behalf by his fathe – application rejected – when rejected the child did not have the capacity to acquire knowledge his father applied for a Protection visa on the child’s behalf – child again applied for a Protection visa but that application was rejected on the ground that the child had previously made an application for a visa within the meaning of s.48A of the Migration Act 1958 (Cth) – whether child was not a person who had previously applied for a Protection visa because the child did not have knowledge of the first application at the time the first application was made – application dismissed. |
| Legislation: Corporations Act 2001 (Cth) Migration Act 1958 (Cth), ss.5(1), 36(2), 45, 46, 47, 48, 48A, 48B Migration Legislation Amendment Act (No 6) 2001 (Cth) |
| Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 Al Raied v Minister for Immigration and Multicultural Affairs [2001] FCA 313 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Re Woolley; ex parte M276/2003 [2004] HCA 49; (2004) 225 CLR 1 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 |
| First Applicant: | SZVFL |
| Second Applicant: | SZVFM |
| Third Applicant: | SZVFN |
| Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| File Number: | SYG 2778 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 16 March 2016, 21 April 2016 |
| Date of Last Submission: | 21 April 2016 |
| Delivered at: | Sydney |
| Delivered on: | 19 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Aleksov |
| Solicitors for the Applicant: | Carina Ford Immigration Lawyers |
| Counsel for the Respondent: | Mr B Kaplan |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2778 of 2014
| SZVFL |
First Applicant
| SZVFM |
Second Applicant
| SZVFN |
Third Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicants are father, mother, and child. They are citizens of the Republic of India. The mother and father arrived in Australia in March 2008 holding student visas, and the child was born in Australia in October 2008.
In December 2012 the father applied (first PV application) for a Protection (Class XA) visa (Protection visa). The mother and child were included in the application, but they did not make their own claims for protection. The child was four years old at the time of that application. On 26 February 2013 a delegate of the respondent (Minister) refused to grant the applicants a Protection visa and, on 31 October 2013, the Refugee Review Tribunal affirmed the delegate’s decision.
On 17 September 2014 the child applied for a Protection visa (second PV application). The child was then just under eight years old. The father and mother were included in the application, but neither made a claim for protection. By letter dated 18 September 2014 addressed to the child, an officer of the Department of Immigration and Border Protection (Department) said the child was prevented by s.48A of the Migration Act 1958 (Cth) (Act) from making an application for a Protection visa because the child had been refused a Protection visa on 26 February 2013, and the child had not left Australia since the date of that refusal.
By an application for judicial review, the applicants claim the officer of the Department was incorrect in stating that s.48A of the Act, as it applied on 17 and 18 September 2014, prevented the child from making an application for a Protection visa. The applicants submit that, although the child was named as an applicant in the first PV application, the child lacked the capacity to acquire knowledge that the application was made because he was only four years old at that time. The applicants submit, therefore, that on the proper construction of s.48A of the Act, a person can be considered to have made an application for a Protection visa that has been refused only if that person had knowledge the application was made.
The applicants rely on the reasoning of the Full Court of the Federal Court in Minister for Immigration and Border Protection v Kim,[1] even though that case concerned s.48 of the Act, and even though, in SZVBN v Minister for Immigration and Border Protection,[2] Judge Driver of this Court held that the reasoning of Kim does not apply to s.48A of the Act. The applicants submit s.48 of the Act is materially indistinguishable from s.48A; that SZVBN is “clearly wrong”; and, therefore, the reasoning in Kim applies to s.48A of the Act. The Minister, on the other hand, submits the reasoning in Kim does not apply to s.48A of the Act; and, if it does apply, that reasoning should lead to the conclusion that the “test enunciated, or criterion developed, in that case was met with respect to the second and third applicants”, that is, the father and mother.[3]
[1] (2014) 221 FCR 523
[2] [2015] FCCA 2977
[3] Outline Submissions of the Respondent, [4]
Much of the argument before me was directed to the decision in Kim; to whether the text of s.48(1) and s.48A(1) of the Act was sufficiently similar to warrant the conclusion that the reasoning in Kim applied to the construction of s.48A; and to whether Judge Driver in SZVBN incorrectly concluded that the reasoning in Kim does not apply to s.48A of the Act. The issue that arises on the application for judicial review before me, however, is whether, by the father’s having made the first PV application which included the child as a member of the father’s family unit, the child “has made . . . an application for a protection visa” within the meaning of s.48A(1) of the Act. That is a question of statutory construction that must be determined, at least initially, by considering the meaning of the text of the expression “a non-citizen . . . has made . . . an application for a protection visa” in the statutory context in which that expression appears.
These reasons for judgment are arranged as follows. First, I will set out some of the basic principles that govern the construction of legislation. Second, I will construe the expression “a non-citizen who . . . has made . . . an application for a protection visa” that appears in s.48A(1) of the Act. Third, I will set out the decision and reasoning in Kim and consider whether the construction I give to “a non-citizen who . . . has made . . . an application for a protection visa” is inconsistent with the reasoning in Kim. Fourth, I will consider the applicants’ submissions that the decision in SZVBN is clearly wrong. Finally, I will refer to some of the Minister’s submissions.
The parties agree that the application before me is to be determined on the basis of the Act as it applied on 17 and 18 September 2014.[4] For ease of expression, however, I will use the present tense when I refer to the relevant provisions of the Act and of the Migration Regulations 1994 (Cth) (Regulations) as they applied on 17 and 18 September 2014.
[4] After the Full Federal Court delivered its judgment in Kim, s.48A of the Act was amended by the Migration Legislation Amendment Act (No 1) 2014 (Cth), Schedule 1, item 3, by including subsection (1AA) which reverses the decision in Kim. It is common ground that this amendment does not apply to the application that is before me.
There is one other matter to note. At the hearing before me, the child was represented by counsel, but the father and mother appeared without legal representation. The interests of the three applicants, however, coincide.
Statutory construction
The basic principles that govern the construction of statutes were stated by the High Court in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:[5]
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
[5] [2009] HCA 41; (2009) 239 CLR 27 at 46-49 ([47]) (Hayne, Heydon, Crennan and Kiefel JJ), cases referred to omitted
Also relevant is the following passage from the judgment of the plurality in Project Blue Sky v Australian Broadcasting Authority:[6]
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[6] [1998] HCA 28; (1998) 194 CLR 355 at 381 ([69]) (McHugh, Gummow, Kirby and Hayne JJ)
If the consideration of the statutory text yields a meaning that is not doubtful, “there is no occasion to look to the extrinsic material”.[7] That means “it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction”.[8]
[7] Catlow v Accident Compensation Commission [1989] HCA 43 at [6]; (1989) 167 CLR 543 at 550 (Brennan and Gaudron JJ)
[8] Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at 265 ([33]) (French CJ, Gummow, Hayne, Crennan and Kiefel JJ). Heydon J noted (at 277 ([74]) that “as is very common, reading the Explanatory Memorandum and the Second Reading Speech is much less helpful than reading the legislation itself.”
Construction of “non-citizen who has made an application for a protection visa”
Section 48A appears in Subdivision AA of Division 3 of Part 2 of the Act, which is headed “Applications for visas”. The first provision to consider is s.45(1), which provides that, “[s]ubject to this Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class”. That directs attention to the Regulations, and, in particular, to reg.2.07 which relevantly provides:
(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
. . .
(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.
Item 1401 of Schedule 1 to the Regulations provides for “Protection (Class XA)”, and also identifies a prescribed form by its number.
Next, there is s.47 of the Act, which provides, among other things, that the Minister “is to consider a valid application for a visa”[9] and “[t]o avoid doubt, the Minister is not to consider an application that is not a valid application”.[10] That, in turn, directs attention to s.46 of the Act, which specifies what constitutes a “valid application for a visa”. Subsection 46(1) of the Act relevantly provides that “an application for a visa is valid if, and only if”, among other things, the application “is not prevented by section . . . 48A (protection visa)”. And that brings me to s.48A(1) of the Act, which provides as follows (emphasis added):
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);
[9] Act s.47(1)
[10] Act, s.47(3)
may not make a further application for a protection visa while in the migration zone.
The question is what is meant by “a non-citizen who . . . has made . . . an application for a protection visa”.
a)The expression “non-citizen” is defined in s.5(1) of the Act to mean “a person who is not an Australian citizen”. “Person” is broad enough to include an infant.[11]
b)The meaning of “application for a protection visa” is to be gained from the provisions dealing with applications for visas to which I have already referred. The expression denotes the class of acts s.45 and s.46 of the Act and the Regulations require to be performed to constitute the making of an application for a Protection visa. This class of acts, at the very least, includes the completion, and communication to the Minister, of the form prescribed by Item 1401 of Schedule 1 to the Regulations. Further, it has been held that the expression “an application for a visa” in s.48A of the Act means “an application for a valid visa”.[12]
c)The next word to consider is “made”. It is a verb that links the acts that constitute the application for the visa with the person who performs the acts, namely, the non-citizen or, perhaps, the person who performs the acts on behalf of the non-citizen.[13] That is, the acts must be those of the person, or, perhaps, those of another person whose acts may be attributed to the first-mentioned person, who applies for the Protection visa.
d)Finally, there is the auxiliary verb “has”. That signifies that the acts constituting the making of a valid application for a Protection visa must have already been performed.
[11] Al Raied v Minister for Immigration and Multicultural Affairs [2001] FCA 313 at [36] (Moore, Mathews, and Mansfield JJ): “Thus, in terms, any person (whether a child or not) can apply for a visa.”
[12] SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487, at [7]-[12] (Black CJ and Allsop J)
[13] I say “perhaps” because whether or not a person may apply for a Protection visa on behalf of a non-citizen and, if so, in what circumstances, is a question I consider below.
The expression “a non-citizen who . . . has made . . . an application for a protection visa” in s.48A of the Act, therefore, denotes a person who is not an Australian citizen, or, perhaps, another person whose acts may be attributed to the first-mentioned person, who has performed the acts that constitute the making of an application for a protection visa that complies with s.45 and s.46 of the Act and with the Regulations.
It should be apparent that the construction of the expression “a non-citizen who . . . has made . . . an application for a protection visa” in s.48A of the Act is coterminous with the construction of the expression “a non‑citizen who wants a visa must apply for a visa of a particular class” that appears in s.45 of the Act and the expression “an application for a visa” that appears in s.46(1) of the Act. By that I mean that a person is “a non-citizen who . . . has made . . . an application for a protection visa” within the meaning of s.48A(1) of the Act only if the person is a person who has applied for a visa of a particular class, as required by s.45 of the Act and the Regulations, and if the person made a valid application for a visa, as required by s.46 of the Act. Thus, to conclude a person is not “a non-citizen who . . . has made . . . an application for a protection visa” within the meaning of s.48A(1) of the Act necessarily implies that the person has not made an application for a visa within the meaning of s.45 of the Act or the Regulations; or if the person did so, the application was not a valid application for a visa within the meaning of s.46 of the Act. Conversely, to conclude a person has applied for a class of visa under s.45(1) of the Act and in accordance with the Regulations, and has done so by making a valid application for a visa within the meaning of s.46 of the Act, necessarily implies that the person “has made . . . an application for a protection visa” within the meaning of s.48A(1) of the Act.
The construction for which the applicants contend – namely, a person is “a non-citizen who . . . has made . . . an application for a protection visa” only if he or she has knowledge of the application – necessarily implies that an essential element of the making of a valid application for a Protection visa is that the person who makes the application must have knowledge of that application. That may be accepted as correct for persons who: (i) have the capacity to perform the acts that constitute the making of a valid application for a Protection visa; and (ii) have the capacity to understand they have, or someone on their behalf has, performed such acts; and (iii) understand the nature of the acts performed.[14] But the construction for which the applicants contend assumes that persons (incapacitated persons), such as infants and young children, who do not have the capacity to acquire knowledge of the making of an application for a Protection visa, or the capacity to acquire knowledge of some other person’s making an application for a Protection visa on their behalf, must also have knowledge of the application for a Protection visa.
[14] “It is trite to say that an act generally only has legal effect if the mind of the person performing it accompanies its performance.” (Soondur v Minister for Immigration & Multicultural Affairs [2002] FCAFC 324 at [35] (Gray J))
That commits the applicants to one of two alterative positions. The first is that an incapacitated person cannot make a valid application for a Protection visa because he or she does not have the capacity to form the relevant knowledge that a Protection visa (or any other kind of visa) is being or has been made on his or her behalf. The second, and alternative, position is that a person can make a valid application on behalf of an incapacitated person for a Protection visa for the purposes of s.45(1) and s.46 of the Act, but if the application is not successful, the incapacitated person will not be treated as having made “an application for a protection visa” within the meaning of s.48A(1) of the Act.
The first position is implausible because it is unlikely Parliament intended the Act not to permit incapacitated persons to apply for Protection visas or, indeed, for any other kind of visas. In any event, the first position is wrong. Section 45 of the Act has been construed as providing “in terms” that “any person (whether a child or not) can apply for a visa”.[15] The second position is open to being characterised as absurd. First, if correct, an application for a Protection visa (or any other kind of visa) made on behalf of an incapacitated person will be capable of being both a valid application for a visa and not a valid application for a visa,[16] depending on the outcome of the application. It will be a valid application for a visa for the purposes of s.45 and s.46 of the Act if the application is successful, but it will not be a valid application for visa for the purposes of s.48A if it is unsuccessful. Second, if correct, an incapacitated person would have the ability to continue to make applications for Protection visas through other persons for as long as his or her incapacity lasts. That would be contrary to the apparent purpose of s.48A of the Act, which, subject to s.48B of the Act, is to deny a person the right to make more than one valid application for a Protection visa.
[15] Al Raied v Minister for Immigration and Multicultural Affairs [2001] FCA 313 at [36] (Moore, Mathews, and Mansfield JJ)
[16] Remembering that it has been held the s.48A(1) applies to the making of a valid application for a visa
That a particular construction of a statutory text may be implausible or absurd will not render the construction incorrect if the text is not reasonably capable of supporting any other construction. In my opinion, however, the text of s.48A, considered in the context of the Act as a whole, does not compel the acceptance of a construction that is implausible or absurd.
I begin with a truism. When enacted, a statute does not appear on a naked legal and factual landscape. Any given statute is premised on a number of legal and factual assumptions, and often it is by reference to these assumptions that a statute is construed. A statute’s reliance on assumptions to communicate Parliament’s intended meaning arises from necessity, for legislation would be impossibly unwieldy if every statute were to articulate every factual and legal premise on which it relies to communicate its intended meaning. Some of the assumptions are expressed as rules or presumptions of statutory construction,[17] but most are not.
[17] See, for example, D C Pearce & R S Geddes Statutory Interpretation in Australia Eighth ed. 2014 LexisNexis Butterworths, Chapter 5
There are at least two classes of legal rules on whose assumed existence and operation many, if not most, statutes are intended to rely. One class of rules (rules of capacity) relates to the capacity of legal persons – natural and artificial[18] – to acquire or be conferred with or to exercise rights, privileges, powers, or immunities, or to be subjected to duties, liabilities, or disabilities. Statutes have as their object legal persons. They operate by conferring rights, privileges, powers, or immunities, or by imposing duties, liabilities, or disabilities, on legal persons; and whether or not in any given case a statute has done any of these things in relation to a legal person depends, in part, on whether the legal person has the relevant capacity to acquire the rights, privileges, powers, or immunities, or become subjected to the duties, liabilities, or disabilities, provided by the statute. The second class of rules deal with the circumstances in which the acts or knowledge of one person may be attributed to another (rules of attribution).[19]
[18] For example, bodies corporate and bodies politic
[19] The expression “rules of attribution” was used by Lord Hoffman when delivering the advice of the Privy Council in Meridian Global Funds Management Asia Ltd v The Securities Commission [1995] UKPC 5; [1995] 2 AC 500. His Lordship used the expression in the context of bodies corporate.
There are statutes and rules of the common law that deal with capacity and attribution in general; and a particular statute may deal, or may be taken to deal, with issues of capacity or attribution or both in a particular way for the purposes of that statute. Outside these cases, however, it is reasonable to expect that a statute will have been enacted on the assumption that its provisions will apply to persons, having regard to general rules of capacity and to general rules of attribution provided by other statutes and by the common law.
Take, for example, a statute that confers or imposes, or is to be taken to confer or impose, rights or liabilities on legal persons that include registered companies. In many cases the statute will not define the circumstances in which the company may acquire the rights or be subjected to the liabilities the statute creates or imposes. The statute will be taken to assume that whether or not in any given case a company has the capacity to acquire a right or incur a liability provided for by the statute, and whether the company did acquire such right or incur such liability, will be determined by reference to the provisions of the Corporations Act 2001 (Cth) and to the common law rules of agency that have been held to apply to companies. The same is true of other legal persons to whom a statute is intended to apply. Relevant to the issues before me is the case of infants and young children.
Special rules of capacity and rules of attribution are required for infants and young children. That is so because many legal rights and liabilities provided for by the common law and by statute can only be acquired or incurred if the person has a capacity to perform the acts the law requires to be performed before the right or liability may accrue, and if the person has the capacity to understand the nature of the acts the law requires to be performed. Infants are incapable of performing any, or at least most, such acts, or of acquiring the relevant understanding. Young children may also lack such capacity, depending on the characteristics of the particular child in any given case.
There are, therefore, general rules that govern the circumstances in which a child, although lacking capacity, may acquire a right or a benefit that is conferred by the common law or by statute, assuming it is the intention of the relevant common law or statute that the right in question is available to be acquired by persons that include infants. These rules were shortly stated by McHugh J in Re Woolley; ex parte M276/2003:[20]
Parents in their capacity as guardians of an infant child have the power under the common law to make decisions on behalf of the child, provided that the child does not have the competence to make the decision. Thus, where a child lacks capacity, the ordinary rules of the common law authorise the parent or guardian of the child to act on the child's behalf. Parental authority diminishes as the child's legal competence emerges. The parent's authority is at an end when the child has sufficient intellectual and emotional maturity to make an informed choice.
[20] [2004] HCA 49; (2004) 225 CLR 1 at [103] (footnotes omitted)
And it has been held that these rules apply to a child who applies for a visa. Thus, in Re Woolley, McHugh J said:[21]
. . . for the purposes of making immigration decisions, where the child lacks the capacity to make a decision, the discretion is vested in the parents or legal guardian of that infant child.
[21] [2004] HCA 49; (2004) 225 CLR 1 at [104]
Also in Re Woolley, Gummow J said:[22]
There is nothing unusual in the circumstance that in many instances the discretion to exercise immigration decisions in relation to infant children will be vested in their parents.
[22] [2004] HCA 49; (2004) 225 CLR 1 at [155]
This discussion, then, gives rise to the following conclusions.
a)The word “person”, as used in the Act, is broad enough to include infants and children who do not have sufficient capacity to understand the nature of the acts necessary for making an application for a Protection visa. Thus, a “non-citizen” in s.48A(1) of the Act includes an infant or a child of insufficient capacity who is not an Australian citizen.
b)Accepting the Act permits infants and young children of insufficient capacity to apply for a visa, the Act assumes that such persons may make, and therefore permits such persons to make, applications for a visa in a manner permitted by the law through persons who do have capacity to apply for a visa on behalf of the infant or young child.
c)One such manner is by the parents of the infant or child exercising the power the parents have at common law to make decisions on behalf of their infant or child; and such power may be exercised by the parents making an application for a visa on behalf of the infant or child.
d)In these circumstances, to the extent that knowledge is an essential element of the making of an application for a visa, the knowledge must be held by the person who lawfully makes the application on behalf of the child, namely, the parent.
From these conclusions it follows that, assuming, as the applicants contend, the child lacked capacity to understand he was included as an applicant in the first PV application, he could have made an application for a Protection visa only through the agency of another person. In the case before me, the child made the first PV through his father. It is not suggested the father did not have the power to make the first PV application on behalf of the child. The only person’s knowledge of the making of the first PV application in relation to the child that was relevant, therefore, was that of the father. It is not suggested the father did not have knowledge of the making of the first PV application. It follows, therefore, that by having been included in the first PV application by the father, the child was, at the time the second PV application was lodged, “a non-citizen who . . . has made . . . an application for a protection visa”.
Based on my construction of s.48A(1) of the Act, therefore, I would dismiss the application. I must, however, consider whether this analysis conflicts with the Full Federal Court’s reasoning in Kim’s case.
The decision and reasoning in Kim
In Kim the respondent lodged an application for a Student (Temporary) (Class TU) Higher Education Section (Subclass 573) visa (Student visa) in January 2013. An officer of the Department rejected the application on the ground that s.48 of the Act prevented the respondent from applying for the visa because the respondent had previously applied for a visa that had been refused. That was a reference to an application that was made by the respondent’s father in January 2008 for an Other Family (Residence) (Class BU) visa (BU visa). At that time, the respondent was 14 years of age, and was named as a member of her father’s family unit.
A judge of this Court found that the respondent was unaware of the BU visa; the respondent’s participation in the application was undertaken by her father on her behalf; and whenever a signature appeared above the respondent’s name on the visa application form, it was the signature of the respondent’s father.[23] The primary judge held that the relevant question was whether, when the BU visa was prepared and lodged, the respondent had achieved an understanding and intelligence sufficient to enable her to understand fully what the application for the BU visa involved, and whether she might wish to apply for one. The judge further found the Departmental officer made a jurisdictional error by failing to consider whether the respondent’s father had the authority to make the visa application on behalf of the applicant.[24]
[23] Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523 at [10]
[24] Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523 at [11]
The Minister appealed on a number of grounds. The Minister’s principal submission, however, was that the respondent lacked the competence to make an application for a visa in January 2008 in her own right because she had not attained sufficient understanding and intelligence to enable her to understand fully what was proposed. The Minister further submitted the primary judge should have held that the respondent had applied for the BU visa through her father.[25] The Minister also submitted that the application for the Student visa was a valid application and, for that reason, the application for that visa was one that, for the purposes of s.48 of the Act, was made by the respondent.[26]
[25] Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523 at [20]
[26] Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523 at [41]
The resolution of the appeal turned on the proper construction of s.48(1) of the Act, which provided as follows:
A non‑citizen in the migration zone who:
(a)does not hold a substantive visa; and
(b)either:
(i)after last entering Australia, was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non‑citizen had applied (whether or not the application has been finally determined); or
(ii)held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class.
For the Full Court, the relevant question was whether the delegate’s refusal to grant the BU visa constituted a refusal of a visa “for which the non-citizen had applied”. More particularly, the question was whether the application for the BU visa was a visa “for which [the respondent] had applied” within the meaning of s.48 of the Act.[27]
[27] Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523 at [7]
The Full Court held that that question was not answered by answering in the affirmative the question of whether the application for the BU visa was a valid application for a visa. The Full Court did not accept the Minister’s submission that if an application is valid then, within the meaning of s.48 of the Act, the visa application is made by a person named in the application as a person on whose behalf it was made. The relevant question was whether the applicant made the application for the BU visa.[28]
[28] Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523 at [41]
The Full Court said that s.48 of the Act is directed “to the person and to an application of which the non-citizen had knowledge, rather than [to] an application which merely validly affected a non-citizen or from which the non-citizen would have benefited”.[29] The Full Court further said:[30]
In our opinion the question of knowledge is not to be answered merely by reference to whether or not the non-citizen was a minor or was not legally capable of entering into a contract of a particular kind. A person aged 17 may well have made an application within the meaning of s 48 even if it was made on his or her behalf.
The question remains: was the visa which was refused a visa which had the character of a visa for which the respondent had applied? In our opinion the answer on the undisputed facts of this case is “No”. It is to be recalled that the primary judge . . . found that the Class BU visa application of January 2008 was an application which the respondent did not sign and of which she was unaware and that her participation in it was undertaken on her behalf by her father.
[29] Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523 at [37]
[30] Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523 at [39], [40]
It appears, therefore, the Full Court was of the view that, for the purposes of s.48 of the Act, a person cannot be taken to have made an application for a visa unless the person was aware, that is, had knowledge, that an application had been made by him or her, or on behalf of him or her.
I do not interpret the Full Court’s reasoning or findings as being premised on the view that, for the purposes of s.48 of the Act, a non-citizen who does not have the capacity to apply for a visa, but on behalf of whom some other person has applied for a visa, can never be taken to have knowledge of the making of an application for a Protection visa for the purposes of determining whether such person is “a non-citizen who . . . has made . . . an application for a protection visa”. The Full Court did not consider that question. In particular, it did not consider whether an incapacitated person could have attributed to him or her the knowledge the person acting on his or her behalf has.
I conclude, therefore, that, assuming s.48 of the Act is materially indistinguishable from s.48A of the Act, the reasoning and findings of the Full Court in Kim do not apply to the circumstances of the case before me, and they do not compel me to accept the applicants’ claim that, even though the child had been included as an applicant in the first PV application, the child was not “a non-citizen who . . . has made . . . an application for a protection visa” within the meaning of s.48A of the Act.
Notwithstanding my conclusion, I will consider the applicants’ submission that Judge Driver’s decision in SZVBN is clearly wrong.
Is SZVBN “clearly wrong”?
In SZVBN Judge Driver considered as a preliminary question whether Kim “has any application to s.48A of the [Act] in circumstances where a second protection visa application is made by a person who was previously included in an earlier protection visa application without their knowledge as a member of the family group of the former principal applicant”.[31] His Honour answered the question “no”, and for two reasons.
[31] [2015] FCCA 2977, [1]
First, s.48 and s.48A of the Act served “somewhat different purposes and have a different legislative history”.[32] Section 48 is “a qualified permission applying generally with a focus on the applicant for the visa, whereas s.48A of the Act is a general prohibition limited to protection visa applications”.[33] Second, s.48A of the Act was amended to provide that a person who is included in an application for a visa as a member of a family unit is taken to have made an application for a protection visa.[34] The amendments his Honour appears to have had in mind are those that were made to s.36(2) and s.48A(2) by the Migration Legislation Amendment Act (No 6) 2001 (Cth) (2001 Amending Act),[35] and the amendments made to s.48A by the Migration Amendment Act 2014 (Cth) (2014 Amending Act) by inserting s.48A(1C).[36] As to the amendments made by the 2001 Amending Act, Judge Driver noted they reversed the decisions of the Full Federal Court in Dranichnikov v Minister for Immigration[37] and Soondur v Minister for Immigration,[38] and put it beyond doubt that a visa application can be made on behalf of a child.[39] As to the amendments made by the 2014 Amending Act, his Honour said they reinforced the application of s.48A “to all criteria for the grant of a protection visa, including the family group criteria”.[40]
[32] [2015] FCCA 2977, [67]
[33] [2015] FCCA 2977, [67]
[34] [2015] FCCA 2977, [68]
[35] [2015] FCCA 2977, [49]
[36] [2015] FCCA 2977, [69]
[37] [2001] FCA 769; (2001) 109 FCR 397
[38] [2002] FCAFC 324; (2002) 122 FCR 578
[39] [2015] FCCA 2977, [68]
[40] [2015] FCCA 2977, [69]
His Honour concluded this part of his judgment as follows (emphasis added):[41]
In my opinion, the express amendment of s.48A to preclude a person who has been included in a protection visa application as a member of the family unit of an applicant, from making his or her own protection visa application subsequently, leaves no room for the application of the Full Federal Court decision in Kim. In my opinion, the subsequent amendment of the section (along with amendments to s.48) to deal with that decision does not alter that position.
[41] [2015] FCCA 2977, [70]
Counsel for the child identified the elements of what counsel submitted should be understood to be Judge Driver’s reasoning.[42] Those elements portray Judge Driver as having relied extensively, if not exclusively, on the amendments made by the 2014 Amending Act which introduced s.48A(1C) of the Act. Counsel submits his Honour was clearly wrong in relying on s.48A(1C) of the Act. I do not share counsel’s interpretation of his Honour’s reasoning.
[42] Contentions of Fact and Law of First Applicant, [35]
The point of departure for Judge Driver was that s.48A of the Act applied to visa applications, whereas s.48 focused on the applicant for the visa. His Honour was of the view that the emphasis in s.48A of the Act to the application for a visa was reinforced by the 2001 Amending Act which, in his Honour’s opinion, put it beyond doubt that s.48A applied to visa applications, not to visa applicants. His Honour did refer to the 2014 Amending Act. His Honour identified that amendment as “the subsequent amendment”. But his Honour drew a negative conclusion from the amendments made in the 2014 Amending Act, namely, that they did not alter his Honour’s opinion concerning the effect of the 2001 Amending Act. It follows, therefore, that I cannot accept counsel’s submission that Judge Driver was “clearly wrong”.
There is another aspect of his Honour’s reasons that I should mention. Counsel for the child submits there is “no appreciable difference in the terms or context of s 48A so as to prevent Kim from applying”.[43] Judge Driver, however, relied on the contrast between, on the one hand, s.48A of the Act focusing on protection visa applications and, on the other, s.48 of the Act focusing on the applicant for a visa. The differences between the text of s.48A and s.48 of the Act on which his Honour relied for this conclusion are not inconsequential. In Kim the Full Court accepted that the purpose of s.48 of the Act was “to prevent more than one application for a visa in the specified circumstances”, but then asked whether this purpose was directed to “an application [that was] validly made” or “to the person making the application”[44] (my emphasis). The Full Court answered that question by concluding that “the better construction” is the construction they gave to s.48 of the Act.[45] The Full Court’s construction was based on a provision - s.48 - the Full Court held had a visa applicant as its object. It is entirely possible the Full Court may have arrived at a different construction had the Full Court construed s.48A of the Act, whose object was not a visa applicant, but the making of a visa application. This affords another reason for concluding that it was reasonably open to Judge Driver to conclude Kim did not apply to s.48A of the Act.
[43] First Applicant’s Submissions filed 01.10.2015
[44] (2014) 221 FCR 523 at [36] (emphasis in the original)
[45] (2014) 221 FCR 523 at [37]
Thus, as an alternative to the reasons I have given for concluding that Kim does not compel me to find the child was not “a non-citizen who . . . has made . . . an application for a protection visa” as that expression appears in s.48A of the Act, I conclude that, for the reasons Judge Driver gave in SZVBN, the reasoning of Kim does not apply to s.48A of the Act. Judge Driver’s decision in SZVBN, therefore, is an alternative ground for not accepting the construction of s.48A for which the applicants contend, and for dismissing the application.
Minister’s submissions
The Minister submits that the construction for which the applicants contend relies on reading words into s.48A of the Act where there is no clear necessity for doing so. The words the Minister contends the applicant’s construction read into s.48A are the requirement that “a visa applicant must have knowledge of his or her application”.[46] I disagree.
[46] Outline of Submissions of the Respondent, [40]
The notion of “knowledge” is inherent in the word “made” as it appears in the expression “a non-citizen who . . . has made . . . an application for a protection visa”. As Gray J said in Soondur v Minister for Immigration & Multicultural Affairs, “an act generally only has legal effect if the mind of the person performing it accompanies its performance”.[47] The aspect of the construction of s.48A(1) of the Act for which the applicants contend, and which I have not accepted, is that knowledge must be held not only by non-citizens who have the capacity to acquire knowledge that an application for a visa is being made, but also by persons, such as infants, who could not have such capacity and who can, therefore, only apply for a Protection visa through the agency of others. I have concluded that where an incapacitated person, such as a child, makes an application through a person, such as a parent, who is legally authorised to make such application, the person who is required to have the requisite knowledge is the person who makes the application on behalf of the child.
[47] [2002] FCAFC 324 at [35]
The Minister also relied on textual differences between s.48 and s.48A of the Act that should prevent the conclusion that the reasoning in Kim applies to the construction of s.48A. The substance of these submissions was put to Judge Driver in SZVBN. I have already noted that Judge Driver concluded that the textual differences between s.48 and s.48A – and in particular, the focus by s.48 on the person applying for the visa and the focus of s.48A on the application for a visa – prevent the reasoning in Kim from being relevant to the construction of s.48A.
Conclusion and disposition
The second PV application was not a valid application for a Protection visa because the applicants named in that application are non-citizens who, by the first PV application, had previously made a valid application for a Protection visa. In particular, at the time the second PV application was lodged with the Department, the child was “a non-citizen who . . . has made . . . an application for a protection visa”, because he was an applicant in the first PV application, even though the child may not have had the capacity to acquire knowledge that the father included him as an applicant in the first PV application.
I propose, therefore, to order that the application be dismissed.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 19 May 2017
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