SZVKH v Minister for Immigration

[2016] FCCA 1032

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVKH & ORS v MINISTER FOR IMMIGRATION [2016] FCCA 1032

Catchwords:
MIGRATION – First three applicants had previously been refused Protection (Class XA) visas (Protection visas) after Schedule 1 to the Migration Amendment (Complementary Protection) Act 2011 (Cth) (Amending Act) came into effect in relation to applications those applicants lodged before the Amending Act came into effect – whether because of the coming into effect of the Amending Act the applications for Protection visas that had been refused ceased to be valid applications for Protection visas and, for that reason, the first three applicants were not barred by s.48A(1) of the Migration Act 1958 (Cth) from making a further application for Protection visas – Amending Act did not render earlier applications for Protection visas invalid.

Legislation:

Migration Act 1958 (Cth), ss.29, 31(1), 31(3), 36, 36(2)(a), 36(2)(aa), 45, 46,

46(3), 47(1), 47(3), 48A, 48A(1), 65

Migration Amendment (Complementary Protection) Act 2011 (Cth), Sch.1, items 12, 35
Migrations Regulations 1994 (Cth), regs.1.18(1)(a), 2.01, 2.03, 2.07, 2.07(5)
Migrations Regulations 1994 (Cth), Sch.1, item 1401
Migrations Regulations 1994 (Cth), Sch.2

SZUZM v Minister for Immigration [2015] FCCA 1202

First Applicant: SZVKH

Second Applicant: SZVKI

Third Applicant: SZVKJ

Fourth Applicant: SZVKK

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 3038 of 2014

Judgment of: Judge Manousaridis

Hearing date: 30 April 2015

Delivered at: Sydney

Delivered on: 6 May 2016

REPRESENTATION

Counsel for the Applicant: Mr J Williams

Solicitors for the Applicant: Adrian Joel & Co

Solicitors for the Respondents: Mr A Markus of Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The first and second applicant pay the respondent’s costs set in the amount of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3038 of 2014

SZVKH

First Applicant

SZVKI

Second Applicant

SZVKJ

Third Applicant

SZVKK

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants apply for judicial review of a decision of a delegate of the respondent (Minister) made on 27 October 2014 that an application for a Protection (Class XA) visa (Protection visa) the applicants lodged with the Minister on 21 October 2014 was not a valid application.

2. The delegate relied on s.48A of the Migration Act 1958 (Cth) (Act) for deciding the application was not a valid application for a Protection visa. In broad terms, s.48A(1) of the Act provides that a non-citizen who, while in the migration zone, has made an application for a Protection visa that has been refused may not make a further application for a Protection visa while the non-citizen is in the migration zone.

3. There is no issue the applicants are non-citizens, and that the applicants, while in the migration zone, had previously lodged applications for Protection visas that had been refused. The first three applicants claim, however, that the previous application for Protection visas they had lodged was not a valid applications because the complementary protection criterion prescribed by s.36(2)(aa) of the Act was introduced into the Act after they had lodged their Protection visa application, but before that application was finally determined. Because the previous application the applicants lodged was not a valid application for a visa, s.48A of the Act did not apply because that section applies only where an applicant had previously made a valid application. To understand the claims the applicants make, it will be necessary first to set out the relevant background, and then the relevant statutory and regulatory provisions that govern the making of applications for visas.

Background

1. The first and second applicants are husband and wife, and the third and fourth applicants are their two minor children (children). The second applicant (wife) arrived in Australia on 11 October 2009 as the primary holder of a Class TU subclass 572 Vocational Education and Training Sector visa (572 visa). On 1 December 2009 the wife and the first applicant (husband) married in Lebanon, with the wife attending by proxy. The husband arrived in Australia as the secondary holder of a 572 visa as a member of the wife’s family unit.

2. On 13 December 2011 the husband lodged an application for a Protection visa (Original Protection visa application). The application included the wife and third applicant. The application was made by use of a form titled “Application for a Protection (Class XA) visa” and numbered “866B”. At the foot of the first page of the application there is printed the numbers and words “866 (Design date 07/10)”.

3. On 24 March 2012, before the Original Protection visa application was determined, there came into effect the Migration Amendment (Complementary Protection) Act 2011 (Cth) (Amending Act). Item 12 of Schedule 1 to the Amending Act amended s.36(a) of the Act by inserting paragraph (aa) as an additional criterion for the granting of a Protection visa. That criterion was that the applicant must be:

   a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or

4. Item 35 of Schedule 1 to the Amending Act provided as follows:

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

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

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

5. A delegate of the Minister refused the Original Protection visa application on 31 May 2012. The delegate assessed the application against the criteria specified in both s.36(2)(a) and s.36(2)(aa) of the Act. That is, the delegate considered whether the first three applicants were “refugees” within the meaning of the Refugees Convention,[1] and also whether, as a necessary and foreseeable consequence of the first three applicants being removed from Australia to Lebanon, there is a real risk they will suffer significant harm. On 14 June 2012 the first three applicants applied to the Tribunal for review of the delegate’s decision and, on 24 October 2012, the Refugee Review Tribunal (RRT) affirmed the delegate’s decision not to grant the first three applicants a Protection visa. Like the delegate, the RRT assessed the first three applicants’ claims against both s.36(2)(a) and s.36(2)(aa) of the Act.

   [1] 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees

6. On 28 February 2013, an application for a Protection visa was lodged on behalf of the fourth applicant. That application was made by use of a form titled “Application for a Protection (Class XA) visa” and numbered “866B”. At the foot of the first page of the application there is printed the numbers and words “866 (Design date 04/12)”. A delegate of the Minister refused that application on 8 July 2013, and, following the lodgement of an application for review on the fourth applicant’s behalf on 16 May 2014, the RRT affirmed the delegate’s decision.

Making valid visa applications

1. Under s.29 of the Act the Minister may, subject to the Act, grant a visa to a non-citizen. The visas the Minister may grant include those that fall into a class of visas that are prescribed by regulations made under s.31(1) of the Act. The granting of such visas may be made subject to the satisfaction of criteria prescribed by regulations made under s.31(3) of the Act.

2. Classes of visas, as envisaged by s.31(1) of the Act, have been prescribed by reg.2.01 of the Migration Regulations 1994 (Cth) (Regulations). These classes are described in the respective items in Schedule 1 to the Regulations. Additionally, criteria for the granting of visas of particular classes have been prescribed by reg.2.03 of the Regulations. The criteria for each class of visa are set out in particular parts of Schedule 2 to the Regulations.

3. Protection visas are prescribed as a class of visa known as “Protection (Class XA)” visas by item 1401 of Schedule 1 to the Regulations, and the criteria for granting that class of visa are contained in Subclass 866 of Schedule 2 to the Regulations. These include the criteria specified in s.36(2)(a) and s.36(2)(aa) of the Act.

4. A non-citizen who wants a visa must apply for a visa, and he or she must apply for a visa of a particular class.[2] Such applications may only be considered by the Minister; and the Minister can consider an application for a visa only if the application is “a valid application for a visa”.[3] If the application is a “valid application for a visa” the Minister “is to consider” the application.[4] If, after considering a “valid application for a visa”, the Minister is satisfied, among other things, that the criteria prescribed by the Act or Regulations have been satisfied, the Minister “is to grant the visa”, but if not so satisfied, the Minister “is to refuse the grant of the visa”.[5]

   [2] Act, s.45

   [3] Act, s.47(1), (3)

   [4] Act, s.47(1)

   [5] Act, s.65

5. Section 46 of the Act specifies the matters that must exist or not exist if an application for a visa is to be a valid application. For example, the application must be for a “visa of a class specified in the application”,[6] and “it satisfies the criteria and requirements prescribed under this section”.[7] But it is not only s.46 of the Act that specifies what constitutes a valid application for a visa; s.46(3) of the Act provides that the regulations “may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application”. Such criteria have been prescribed by reg.2.07 of the Regulations. Relevant to the application before me is reg.2.07(5) of the Regulations.

   [6] Act, s.46(1)(a)

   [7] Act, s.46(1)(b)

6. Regulation 2.07(5) provides that if an item in Schedule 1 to the Regulations prescribes, among other things, an approved form by reference to a legislative instrument made under reg.2.07(5), the Minister may, by legislative instrument in writing, specify the approved form for making an application for a visa of a specified class. Paragraph 1 of item 1401 of Schedule 1 to the Regulations does provide for an approved form to be specified by the Minister in a legislative instrument made for item 1401. These provisions must be read together with reg.1.18(1)(a) of the Regulations, which provides that the Minister may, in writing, approve forms for “use in making an application for a visa”, and with s.495 of the Act, which provides that the Minister may, in writing, approve a form for the purposes of a provision of the Act in which the expression “approved form” is used.

7. It was common ground that, after the Amending Act came into effect, form 866B was altered.

The applicants’ claims

1. The applicants accept that the form by which the Original Protection visa application was made was an approved form of application at the time it was lodged. They submit, however, that, with the introduction into the Act of s.36(2)(aa), the form by which the Original Protection visa application was made ceased to be an approved form – it had become “defunct”[8] – and, for that reason, the Original Protection visa application was not a valid application for a visa. Because it was not a valid application for a visa, s.48A(1) of the Act did not prevent the applicants from making the application for protection which they made on 21 October 2014.

   [8] T20.40

Did the Original Protection visa application cease to be a valid application for a visa?

1. As a general principle, where at one point in time the law attaches to an act or event a particular legal character, that legal character continues to attach to the act or event unless there is a law that denies the act or event of that character. The applicants accept that the Original Protection visa application was a valid application for a visa at the time it was made. Thus, to make good their claim that the Original Protection visa application, although originally a valid application for a visa, had ceased to be so, the applicants must identify some law that denied the Original Protection visa application the character it originally had of being a valid application for a visa.

2. The applicants rely on item 35 of Schedule 1 to the Amending Act, which I have reproduced earlier in these reasons. The manner in which the applicants submit item 35 invalidated the Original Protection visa application is as follows:[9]

   The effect of Schedule 1 Item 35(a) of the [Amending Act] and the retrospective application of the complementary protection criterion was to invalidate the first application, given that the Schedule 1 and 2 criteria as at date of lodgement could not be satisfied prior to final determination, notwithstanding the application was valid as at the time of lodgement.

   [9] The Applicants’ Amended Submissions [36]

3. The difficulty with this submission is that it ignores the text of item 35 of Schedule 1 to the Amending Act; the text contemplates that applications for Protection visas that had been made before Schedule 1 to the Amending Act came into effect would remain valid applications for Protection visas. That point was made by Judge Smith in SZUZM v Minister for Immigration, where his Honour said:[10]

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

   [10] [2015] FCCA 1202 at [20]

4. I respectfully agree with his Honour’s analysis.

5. The applicants have identified no other statutory provision on the basis of which they submit that the Original Protection visa application ceased to be a valid application for a Protection visa. It follows, therefore, that the Original Protection visa application, which was made by three of the applicants, retained its character of a valid application for a Protection visa and, because that application had been refused, s.48A(1) of the Act prevents three of the four applicants from making a further application for a Protection visa. It also follows that the two grounds of review stated in the further amended application fail. That is so because both grounds are premised on the proposition – which I have not accepted – that the Original Protection visa application was not a valid application.

Other submissions

1. Counsel for the applicants submitted that the form of the Original Protection visa application does not specifically refer to the complementary criterion that came to be included in s.36(2)(aa) of the Act, or otherwise suggest that the person completing the form could apply for protection on the basis of that criterion.[11] The first three applicants, therefore, did not have the capacity to articulate on the form a claim based on complementary protection.

   [11] T11.45

2. I do not accept that submission. The questions the prescribed form asked of the first three applicants included why they had left their country, what they feared may happen to them if they went back to that country, and who the first three applicants thought may harm or mistreat them. As Judge Smith said in SZUZM, each of these questions “was capable of eliciting a response that could have given rise to a claim to meet the criterion in s.36(2)(aa) of the Act”.[12]

   [12] [2015] FCCA 1202 at [16]

3. Counsel also submitted that, when the Amending Act came into effect, the Minister was obliged to issue correct and current forms.[13] Counsel did not identify the source of that asserted obligation. In any event, even if such obligation existed, the extent of such obligation must be assessed against the effect of item 35 of Schedule 1 to the Amending Act. As I have already noted, the effect of that item is that the amendments effected by Schedule 1 to the Amending Act applied to applications that had been made before the amendments took effect but which had not been finally determined before those amendments took effect. Thus, in relation to those applications, the Minister would not have been obliged to issue any form of application because the applications that had been made remained valid.

   [13] T19.45

Position of fourth applicant

1. These conclusions apply only to three of the four applicants. The submissions the applicants have made against the Original Protection visa application being a valid application for a visa do not apply to the application for a Protection visa made on behalf of the fourth applicant. That is so because those submissions rely on the coming into effect of Schedule 1 to the Amending Act after the Original Protection visa application was lodged, but before that application was finally determined. As the Minister submits, however, the fourth applicant’s application for a Protection visa was made after Schedule 1 to the Amending Act had come into effect. The applicants have not submitted that that application was not a valid application for a Protection visa.

Conclusion and disposition

1. The Original Protection visa application was a valid application for a visa. So too was the application the fourth applicant lodged on 28 February 2013. The grant of Protection visas in response to those applications has been refused. It follows, therefore, that the delegate was correct to conclude that s.48A of the Act applied to prevent each of the applicants from making a further application for a Protection visa.

2. I propose, therefore, to order that the application be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 6 May 2016