AZABF v Minister for Immigration and Border Protection [2015] FCAFC 174 | Case summary

Federal Court of Australia (Full Court)|2015-12-04|Before: Mr P, Gleeson J, North ACJ, Flick JJ

REASONS FOR JUDGMENT THE COURT 1 Before the Court is an appeal against a decision of the Federal Circuit Court of Australia given on 20 May 2015. In that decision the primary Judge found, in substance, that the Court was bound by the decision of Gleeson J in SZRWA v Minister for Immigration and Border Protection [2015] FCA 293 in relation to amendments made to s 48A of the Migration Act 1958 (Cth) (the Act) with effect from 28 May 2014, and that as a result the appellant was statute-barred from making a second application for a protection visa under the Act. The appellant claims in the notice of appeal as follows: 1. The learned Judge in erred in not holding that, on the proper construction of s.48A(1C) of the Migration Act 1958 (Cth) ('the Act'), s. 48A of the Act did not prevent the appellant from making a further application for protection visa and that, in the premises, mandamus should issue compelling the respondent to consider the appellant's further application pursuant to s. 47 of the Act. (Errors in original.) 2 The appellant seeks the following orders: 1. The appeal be allowed. 2. The orders made by the learned Judge on 20 May 2015 be set aside and lieu thereof order: a. An order in the nature of a writ of mandamus that the respondent consider the applicant's application for a protection visa received on 30 May 2014. b. The respondent pay the applicant's costs of the application fixed in the sum of $6,646.00. 3. The respondent pay the appellant's costs of the appeal. 4. Such further or other orders as this Honourable Court deems fit.

Application to the Federal Circuit Court 16 On 15 September 2014, the appellant filed an application in the Federal Circuit Court under s 476 of the Act for judicial review of the decision of the delegate. The appellant claimed: 1. Section 48A of the [Migration Act] does not prevent a person from making a subsequent Protection visa application where claims for protection (complementary protection) were not previously considered. 2. The introduction of section 48A(1C) on 28 May 2014 does not prevent an individual who has not previously had a claim for complementary protection considered by the Department from making an application for a Protection visa. 17 The appellant did not file any written submissions in respect of the application, however he conceded, through his Counsel in oral argument before the court below, that the Federal Circuit court was bound by the decision of the Federal Court in SZRWA, and therefore the application could not succeed on that level. The appellant reserved his position with respect to the correctness of SZRWA. 18 The judgment of the court below is short, and can be transcribed in its entirety: 1. This is an application for a Constitutional writ in the nature of mandamus alleged to be within the Court's jurisdiction under s.476 of the Migration Act 1958 in respect of a refusal by the Minister to entertain a protection visa application by the applicant, which refusal was communicated on 11 August 2014. The grounds set out as follows: Section 48A of the Migration Act does not prevent a person from making a subsequent Protection visa application where claims for protection (complementary protection) were not previously considered. The introduction of section 48A(1c) on 28 May 2014 does not prevent an individual who has not previously had a claim for complementary protection considered by the Department from making an application for a Protection visa. 2. Counsel for the applicant properly drew to the Court's attention at the commencement of the hearing to the fact that the grounds raised in the application were ones in respect of which there is a binding decision of the Federal Court of Australia that is dispositive of the only grounds sought to be raised by the applicant. The applicant candidly and properly conceded that there are no distinguishing circumstances from the binding application of the legal principles identified in that case. 3. The applicant's counsel identified that that Court was bound by the decision of Gleeson J in SZRWA v Minister for Immigration and Border Protection [2015] FCA 293 in relation to the amendments made to s.48A of the Migration Act 1958 with effect from 28 May 2014. Relevantly, in relation to that application counsel for the applicant acknowledged that the applicant was a non-citizen who, while in a migration zone, made an application for a protection visa which had been refused and which, in fact, had been finally determined. 4. It is, in those circumstances, clear that this Court is bound by the decision in SZRWA and that the applicant is not entitled to make a further application for protection visa while in the migration zone. It is common ground that the applicant is still in the migration zone, and the decision of the Minister declining to entertain the further application was clearly correct. Counsel for the applicant foreshadowed a formal challenge to the decision binding on this Court. I am clearly satisfied that the decision of Gleeson J in SZRWA is both binding on this Court and is correct in the construction of s.48A of the Migration Act 1958. For these reasons, the application is dismissed. 19 On 5 June 2015, the appellant filed a notice of appeal to this Court. 20 The arguments now sought to be advanced in this Court, it would appear, were not previously advanced for resolution before the Federal Circuit Court. Counsel for the Respondent Minister, however, did not oppose this Court resolving the question of statutory construction posed by the amendment in 2014 to s 48A(1C).

Submissions of the parties 21 The submissions of both parties in this appeal are short. 22 The appellant submits, in summary: The appellant lodged his second application for a protection visa on 30 May 2014, and sought to rely upon paragraph 36(2)(aa) of the Act which was not in force at the time of his first application. Accordingly, the appellant sought to rely upon a different criterion to that on which he relied in his first application for a protection visa. The new s 48A(1C) clearly prohibits further applications for protection visas in circumstances where a claim for "complementary protection" could have been made, but was not. In this case the appellant could not have made an application for a protection visa based on the complementary protection provisions at the time of his first application for a protection visa. The statutory entitlement to do so is new. The concepts of "grounds" and "criteria" in s 48A are ambiguous, and possibly interchangeable. It would have been a relatively straightforward amendment to the Act if Parliament had intended to prevent any person who made an application prior to the commencement of the complementary protection provisions from making a later application after the 2014 Act. It did not do so. 23 The Minister submits, in summary, that: the appellant has not identified any basis for asserting that the primary Judge fell into reviewable error, nor why SZRWA was wrongly decided; section 48A was amended after the decision in SZGIZ specifically to deal with issues there arising; and section 48A in its current terms plainly disposes of the matter in the Minister's favour.

Consideration 24 In our view this matter can be swiftly determined. We consider that the appeal should be dismissed. 25 The terms of ss 48A(1), 48A(1C), 48A(2)(aa) and 36(2)(aa) of the Act read together act as a bar to the lodgement by the appellant of his second application for a protection visa. In particular, we note: section 48A(1C)(b), which provides that s 48A(1) applies such that a non-citizen who has made a previously unsuccessful application for a protection visa may not make a further application for a protection visa, whether the grounds on which an application would have been made or the criteria which the non-citizen would claim to satisfy existed earlier; section 48A(2)(aa), which defines "application for a protection visa" as including an application for a visa that, under the Act or the regulations in force at any time, is or was a visa of the class known as protection visas; and section 36, which is headed "Protection visas - criteria provided for by this Act", and in particular s 36(2)(aa) which provides that a criterion for a protection visa is that the applicant for the visa satisfy the Minister of (in effect) Australia's complementary protection obligations to that applicant. 26 It is clear to us that it is irrelevant whether the grounds or criteria on which a non-citizen relies in his or her subsequent protection visa application were available for reliance by that visa applicant at an earlier point in time (including the time when the non-citizen made an earlier protection visa application). We do not accept the submission of the appellant that the language of s 48A(1C)(b) is ambiguous. Section 36(2) unambiguously sets forth the "criterion for a protection visa". And s 48A(1C) is equally unambiguous when it relevantly provides in s 48A(1C)(b) that a person may not make a further application for a protection visa "regardless of … the grounds on which an application would be made or the criteria which the non-citizen would claim to satisfy existed earlier". Even though the "criterion" now sought to be relied upon, namely s 36(2)(aa) did not exist as at the date of the earlier application, s 48A(1C)(b) is unambiguous in its prohibition on a further application being made "regardless of … whether" the criterion now relied upon "existed earlier". We note that the plain language of the legislation is supported by the Explanatory Memorandum, which details the policy behind the introduction of s 48A(1C). In our view the decision of the Full Court in SZGIZ has been superseded by the 2014 Amendment Act, to the extent that that decision permitted a person whose application for a protection visa has been rejected to make another application based on a different criterion in s 36(2) of the Act. 27 In light of the statutory regime following the commencement of the 2014 Amendment Act (and in place at the time the appellant made his second visa application), it follows that it is irrelevant that the appellant could not, in 2009 at the time of his first protection visa application, have relied on the complementary protection provisions in s 36(2)(aa) of the Act. It is not in dispute that the appellant has previously sought, and been denied, a protection visa. Section 48A(1) of the Act prohibits him lodging another application for a protection visa. 28 At the hearing before us the parties made brief submissions concerning the decision of Gleeson J in SZRWA. That decision is not the subject of appeal, it was an interlocutory application for leave to appeal wherein the applicant was self-represented, and we do not know on what basis the case was argued before her Honour. In our view, it is neither desirable nor necessary to make any comments concerning her Honour's decision, other than to observe that the decision appears to be in accordance with the principles we have explained in this decision, and was accordingly correctly decided. 29 It follows that the decision of the Federal Circuit Court judge in this case was correctly decided. 30 The only question remaining is that of costs. We note that this is the first appeal to this Full Court to deal with legislative amendments enacted - it appears - to specifically address the decision of this Court in SZGIZ. We consider that there is a public interest in the efficacy of those amendments being tested in and determined by this Court. In our view the appropriate order is to dismiss the appeal, but with each party paying their own costs of the appeal. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice North, and the Honourable Justices Collier and Flick.

Migration Amendment (Complementary Protection) Act 2011(Cth)

Migration Amendment Act 2014(Cth)

Migration Act 1958(Cth)ss 36, 36(2), 36(2)(a), 36(2)(aa), 48A, 48A(1), 48A(1C), 48A(1C)(b), 48A(2)(aa), 65, 476

AZABF v Minister for Immigration and Border Protection

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