Dranichnikov v Minister for Immigration and Multicultural Affairs and Ors

THE COURT: 1 The appellant, her husband and their nine year old daughter, each a Russian national, entered Australia on tourist visas on 8 January 1997. On 2 April 1997 an "Application for a Protection Visa (866)" in the prescribed form ("the original application") was lodged with the Department of Immigration and Multicultural Affairs ("the Department"). The applicants were: · the appellant's husband, who claimed to be entitled to a protection visa on the ground that he was a refugee to whom Australia had protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees ("the Refugees Convention"); · the appellant, who claimed to be entitled to a protection visa as a member of her husband's family unit; · the daughter of the appellant and her husband, who also claimed to be entitled to a protection visa as a member of her father's family unit. 2 On 21 May 1997, the original application was refused. 3 On 11 August 2000 the appellant attempted to lodge a further "Application for a Protection Visa (866)" in the prescribed form ("the further application"). In the further application the appellant made a specific claim to be entitled to a protection visa in her own right as a refugee, as defined in the Refugees Convention. The application was not accepted by the Department on the ground that the appellant was prevented from making a further application for a protection visa without the permission of the Minister because she had already made such an application by the original application: see ss 46(1)(d), 48A and 48B of the Migration Act 1958 (Cth) ("the Act"). 4 The appellant applied to the primary Judge to review the decision to refuse to accept her further application for a protection visa. His Honour dismissed the application on the basis that, as s 48A of the Act operated to prevent the making of the further application, the Department was not obliged to accept it. The appellant appeals from his Honour's decision. 5 The appellant appeared in person before the primary Judge and the Full Court. Although her submissions ranged over a number of matters, it is plain that the outcome of the appeal depends upon whether the original application was "an application for a protection visa" and her subsequent application was "a further application for a protection visa" within the meaning of those terms in s 48A. 6 Before dealing with that issue it is necessary to deal with the appellant's contention that her original application was invalid as she claimed refugee status but had not provided any information to support her claim on that ground: see Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435, Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 and Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486. The appellant argued that the invalidity she alleged meant that the further application was the only valid application she has made and therefore ss 46(1)(d) and 48A of the Act do not operate to prevent her from making that application. 7 The primary judge dealt with the appellant's contention at [15]-[19]. His Honour stated: "15. The validity of the current application depends solely upon whether or not it is 'prevented by section 48A' as contemplated by par 46(1)(d). As I understand it, it is accepted that the applicant is a non-citizen and that she has been in Australia since early 1997. She is therefore not able to make a valid application for a protection visa if she has already made such an application since arriving in Australia, and it has been refused as prescribed in par 48A(1)(a). There is no doubt that the current application is for a protection visa. The only question is whether or not the applicant has previously made an application for a protection visa which has been refused. 16. The relevant application form is in four parts, identified as A, B, C, and D. That there is a Part A is a matter of inference. Only Parts B, C and D are before me. Part B is headed 'Application for a Protection Visa (866)' and 'Persons included in this application and family composition'. It provides for the insertion of the names of up to six persons as applicants so that each is allotted an 'applicant number'. The personal history of each of the applicants so named must be provided. There are also questions as to other members of the family unit in Australia who are not included in the application and as to family members not in Australia. As I have pointed out, the regulations contemplate a 'combined' application. In Part B of the first application, applicant 1 was Mr Dranichnikov, applicant 2 was the applicant and applicant 3 was Maria. Part B requires that each applicant indicate whether or not he or she had his or her own claim to refugee status. All three applicants answered 'yes' and signed the document, the present applicant signing on her own behalf and on behalf of Maria. 17. Part C is headed 'Application for an applicant who wishes to submit their own claims to be a refugee' and 'Application for a Protection Visa (866)'. In the first application, this part was completed in the name of Mr Dranichnikov. Attached, apparently in answer to various questions in Part C, were details of life in Russia, including references to the prevalence of crime and bribery of police, details of Mr Dranichnikov's work history and a claim that he was 'someone who belongs to the social group of entrepreneurs'. Mr Dranichnikov claimed that somebody had attempted to kill him and that the police had displayed little interest in the matter. He claimed that his only possible 'crime' was that, 'I spoke openly and directly against unlawfulness of security authorities'. He said that his family had subsequently lived in 'constant fear'. He said that they agreed that his wife should go back to study law with the intention that she would 'fight for the justice from inside', but they have now decided not to go back to Russia because it is dangerous. He claimed that both he and his wife had strong senses of justice and often spoke against lawlessness. He said that whilst in Australia he realized that the attempt on his life was due to such outspokenness and that they were concerned at the possibility that their daughter might be kidnapped. As I have said, this application was unsuccessful. An appeal by Mr Dranichnikov to the Full Court was also unsuccessful. 18. Part D of the application is headed 'Application for a member of the family unit'. and 'Application for a Protection Visa (866)'. It also bears the words: 'This part is for a member of a family unit who does NOT have their own claims to be a refugee, but is included in this application. If you DO have your own claims to be a refugee, complete a Part C instead.' 19. The applicant completed Part D and signed it, notwithstanding her indication in Part B that she had a claim of her own. Part D was also completed and signed on behalf of Maria. The applicant suggested in argument that she had been misled by departmental officers or by a migration agent into mistakenly completing Part D and that she had not understood that in so doing, she would prejudice any subsequent application based on her own claim to refugee status. The evidence is less than persuasive on these matters but in any event, they are not presently relevant. They may be relevant to the exercise of the discretion conferred by s 48B, but that is not a matter with which I am presently concerned. Clearly, the first application contained an application by Mr Dranichnikov for a protection visa upon the basis that he was a refugee and applications by the applicant and Maria, as members of the same family unit, for protection visas on the basis of such membership. In those circumstances subss 46(1) and 48A(1) render the current application invalid." 8 His Honour was plainly correct in concluding that, on a fair reading of the original application, the appellant, who completed Part D but not Part C of the application form, is to be treated as having applied for a visa on the basis of being a member of her husband's family unit, rather than as a person claiming refugee status in her own right. Indeed, when the appellant lodged her further application on 11 August 2000 she took the same view of the earlier application, stating that she had made a previous application "For a Member of Family Unit" on 2 April 1997. Counsel for the Minister also did not dispute his Honour's characterisation of the original application. Therefore, we do not accept the appellant's contention that her original application for a protection visa was invalid. 9 However, it does not follow that ss 46(1) and 48A(1) operate to prevent the making of the further application. In order to determine that question it is necessary to consider the statutory scheme in relation to protection visas. Section 29 provides for the Minister to grant a visa to a non-citizen. Section 31(1) and (2) provide that there are to be prescribed classes of visa in addition to the classes specifically provided for by the Act, including that provided by s 36. 10 Section 36 provides: "(1) There is a class of visas to be known as protection visas. (2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refuges Protocol." 11 Section 31(3) states that regulations may prescribe criteria for visas or visas of a specified class. Section 31(5) provides that a visa is of a particular class if the Act or the regulations specify that it is a visa of that class. 12 Protection obligations under the Refugees Convention are owed to a refugee as defined in Art 1A. Art 1A defines a refugee as a person who has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion if returned to his or her country of nationality. Thus, the criterion in s 36(2) can only be satisfied by a person who has been determined to be a refugee as defined in Art 1A of the Refugees Convention. 13 Section 45 provides for applications for visas. Section 46 sets out the requirements for valid visa applications, which the Minister is obliged by s 47 to consider. One of the requirements stipulated in s 46 is that the application is not prevented by s 48A. 14 Section 48A provides: "(1) Subject to section 48B, a non-citizen who, while in the migration zone, has made: (a) an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or (b) applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined); may not make a further application for a protection visa while in the migration zone. … (2) In this section: application for a protection visa includes: (a) an application for a visa, or entry permit (within the meaning of this Act as in force immediately before 1 September 1994), a criterion for which is that the applicant is a non-citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol; and (b) an application for a decision that a non-citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; and (c) an application covered by paragraph (a) or (b) that is also covered by section 39 of the Migration Reform Act 1992." 15 Section 48B confers a power on the Minister, if he or she thinks it is in the public interest to do so, to determine that s 48A does not prevent a further application for a protection visa. Finally, s 504(1) confers a general power on the Governor-General to make regulations that are not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act. 16 Construing the Act alone it is clear that the class of protection visas referred to in s 48A is the class of visas provided for in s 36. A criterion for that class of protection visas is that Australia owes protection obligations to the applicant as a refugee under the Refugees Convention. Thus, prima facie, a person who applies for a visa on the basis of being a member of a family unit of a refugee, and not as a refugee, is not applying for the class of protection visas referred to in s 36. The original application of the appellant was made on that basis and, therefore, does not appear to be an application for the class of protection visas referred to in s 36. If that is the correct view of the original application, s 48A would not operate to prevent the appellant from making an application for a visa in that class. 17 Although, of course, the Act stands alone, the Migration Regulations 1994 ("the Regulations") applicable at the time of the original application are not inconsistent with that construction. 18 The Regulations, in reg 1.06, provided that a class of visas referred to in Schedule 1 of the Regulations may be referred to "by the code allotted to the class in the heading of the item in Schedule 1 that relates to that class of visas". Regulation 1.07 stated that a "reference to a visa of a particular subclass…is a reference to a visa granted on satisfaction of the criteria set out in the Part of Schedule 2 that bears the number of the subclass" and that a "reference to an applicant for a visa of a particular subclass is a reference to an applicant who applies for a visa of a class that may, under Schedule 1, be granted on satisfaction of the criteria set out in the Part of Schedule 2 that bears the number of the subclass. 19 The connection between a class of visa and a subclass appears to vary under the Regulations. Regulation 2.01 states that for the purposes of s 31 of the Act, the prescribed classes of visas are those created by the Act and such classes as are set out in the respective items in Schedule 1. Regulation 2.02 states that Schedule 2 is divided into Parts, each identified by the word "Subclass", and that a Part of Schedule 2 is relevant to a particular class of visa if the Part of Schedule 2 is listed under the subitems "Subclasses" in the item in Schedule 1 that refers to that class of visa. Regulation 2.03 then provides that for the purposes of s 31(3) of the Act, the prescribed criteria for the grant to a person of a visa of a particular class are the primary criteria set out in a relevant Part of Schedule 2 or, if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria. 20 From the foregoing, it can be seen that on the one hand the word "subclass" identifies the criteria to be satisfied in respect of a class of visa and on the other hand further defines, or prescribes, a class of visa by providing multiple descriptions of visas within a class, and providing alternative criteria to be satisfied in respect of a class of visas so redefined. 21 Item 1126 of Schedule 1 provided for a Protection (Class AZ) visa. The "Subclass" in that item is referred to as "866 (Protection)". By operation of reg 2.03, "Subclass 866" in Schedule 2 stipulated the primary and secondary criteria required to be satisfied in respect of a Protection (Class AZ) visa. Subclass 866 (Protection) was the only subclass listed under item 1126 of Schedule 1 and, therefore, no alternative criteria were provided in Schedule 2 for the grant of a Protection (Class AZ) visa. 22 The primary criteria included the criteria in cll 866.21 and 866.22 which provided: "866.21 Criteria to be satisfied at time of application 866.211 The applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and: (a) makes specific claims under the Refugees Convention; or (b) claims to be a member of the same family unit as a person who: (i) has made specific claims under the Refugees Convention; and (ii) is an applicant for a Protection (Class AZ) visa. 866.22 Criteria to be satisfied at time of decision 866.221 The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. 866.222 In the case of an applicant referred to in paragraph 866.211(b): (a) the Minister is satisfied that the applicant is a member of the same family unit as a person who has made specific claims under the Refugees Convention (a claimant); and (b) that claimant has been granted a Protection visa." 23 The Regulations provide for forms, which are to be approved by the Minister, to be used in making applications for visas of different classes: see reg 1.18(a). The approved forms must be used by an applicant: see reg 2.07(1). From further material provided on the hearing of the appeal, it can be seen that Pt A of the approved form used in April 1997 for the original application contained explanatory notes on how to apply for the visa the subject of the application. The notes clearly distinguish between a protection visa applied for by a refugee claimant and a visa applied for by a family member. In the latter case there is no suggestion there is any requirement for a family unit claimant to make a claim that he or she is a refugee. Rather, the notes state that family member claimants "can be granted a Protection Visa" if they are members "of a family unit of a person who has been determined to be a refugee". As was pointed out to counsel for the Minister, the approved form did not state that a family member claimant was required to claim refugee status and family membership (as required by cl 866.211(b) of Subclass 866). Indeed, the explanatory notes in Pt A and the structure of Pts B, C and D of the approved form appear to assume that each claim is a true alternative to the other. 24 The primary criteria were different in respect of refugee claimants and family member claimants and the Regulations, including the approved form, appear to have contemplated differentiation between a visa granted to a claimant under the Refugees Convention and a visa granted to a member of the family of such a claimant. Whether the Regulations were sufficient to give effect to that purpose is unnecessary to decide. The construction of s 48A, set out above, is consistent with the relevant legislative history. Prior to 1 September 1994 the Act and the Regulations made separate provision for visas for refugee claimants and family member claimants. From 1 February 1993 to 1 September 1994 the provisions relevant to refugee claimants were s 26B of the Act and regs 2A.1, 2A.2 and cll 200.32 and 200.33 of Pt 200 Class 200 (Refugee) Visa and Entry Permit of the Migration (1993) Regulations. The relevant provisions for family member claimants were cll 200.338 and 200.339. Between 12 December 1989 and 1 February 1993 a similar scheme applied under the Regulations. Regulations 101 and 117B(1)(a) and (b) provided for refugee claimants and reg 117B(1)(c) provided for family member claimants. Finally, s 48A was introduced by the Migration Legislation Amendment Act (No 3) 1995. There is nothing in the Explanatory Memorandum at [8] or in the specific notes to s 48A at [6] that suggests that the section was intended to extend to applications by family member claimants in addition to those of refugee claimants. 25 Our construction is also consistent with Australia's obligations under the Refugees Convention to afford a claimant for refugee status the opportunity, as of right, of applying for asylum. If the Minister's contention were correct, subject to Ministerial permission under s 48B, that opportunity would be denied to persons who had previously applied for visas as family members, rather than as refugees. 26 For the foregoing reasons the appellant is entitled to succeed on her appeal on the ground that the decision to refuse to accept her application for a protection visa is not authorised by the Act or the Regulations. It is not contended by the Minister that the Court does not have power to make, or should not make, appropriate orders under s 481 of the Act if the appellant succeeds in her application for review. Accordingly, the appeal will be allowed, the orders of the trial judge set aside, and, in lieu thereof, an order made under s 481(1)(d) of the Act that the Minister refrain from refusing to accept an application by the appellant for a protection visa on the ground that she is prevented from making such an application under s 48A of the Act. The appellant is entitled to her reasonable disbursements in respect of the application and the appeal. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lee, Finn and Merkel.