Consideration
29 Before addressing the crux of the appellant's submission as to why the second protection visa application is said to be valid, it is first appropriate to consider ss 48, 48A and 48B of the Migration Act.
30 The starting point for ascertaining the meaning of a statutory provision is the text of the statute, having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]-[71]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47].
31 Sections 48, 48A and 48B are in a legislative scheme where s 65 of the Migration Act relevantly provides that after considering a valid visa application, the Minister, if satisfied that the criteria for the grant of the visa are met, and the grant of the visa is not otherwise prevented by any provision of the Migration Act or a law of the Commonwealth, is to grant the visa and, if not so satisfied, the Minister is required to refuse the visa. The Minister has a duty to consider a valid visa application: s 47(1) of the Migration Act, which continues until the application is withdrawn, the visa is granted or refused, or "further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration)": s 47(2) of the Migration Act. The Minister is not to consider an application which is not valid, and a decision that an application is not valid, is not a decision to refuse to grant a visa: s 47(3) and (4) of the Migration Act.
32 Section 48 provides that a non-citizen in the migration zone who does not hold a substantive visa and, after last entering Australia was refused a visa, or held a visa that was cancelled under certain provisions of the Migration Act, may apply for a visa of a class prescribed for the purposes of that section. Regulation 2.12 of the Migration Regulations 1994 (Cth) lists classes of visas prescribed for the purposes of s 48. Relevantly, "(c) protection visas" are included in that list.
33 As can be seen from s 48A, relevant to these proceedings, a non-citizen who has had an application for a protection visa refused cannot make a further application for a protection visa while the non-citizen is in the migration zone.
34 When s 48A was inserted into the Migration Act, s 48B was also enacted which provides the Minister with the power to exercise a non-compellable discretion in favour of allowing a particular individual to lodge a repeat application for a protection visa if the Minister thinks it is in the public interest to do so. The power is only to be exercised personally, and when there is a decision to exercise the power, it must be reported to Parliament: s 48B(2) and (3) of the Migration Act.
35 Section 48 was inserted by the Migration Reform Act 1992 (Cth). Later, ss 48A and 48B were inserted by the Migration Legislation Amendment Act (No. 4) 1995 (Cth). The Explanatory Memorandum to that Act stated at [12]:
The Act is also being amended to stop the use of repeat applications for protection visas by non-citizens to delay their removal and to circumvent the immigration requirements of Australia. This amendment will contribute to increasing the efficiency of Australia's refugee determination system and to minimising ill-founded protection visa applications. Where the Minister thinks it is in the public interest to do so, he or she will have the power to exercise a non-compellable discretion in favour of allowing a particular individual to lodge a repeat application. The Minister must table a statement in Parliament setting out his or her reasons for thinking this decision is in the public interest.
36 The relevant Explanatory Memorandum also stated at [13] that the proposed new s 48A:
… provides that a non-citizen, while he or she remains in the migration zone, who has made an application or applications for protection visas which have been refused may not make a further application for a protection visa. This provision applies even if a non-citizen's application for a protection visa has not been finally determined (that is, if, for example, it is being reviewed by the RRT). …
37 At paragraph [14], the Explanatory Memorandum noted that proposed s 48B "provides the Minister with the power to exercise a non-compellable discretion in favour of allowing a particular individual to lodge a repeat application if the Minister thinks it is in the public interest to do so."
38 In Al Tekriti, Mansfield J made the following observations in respect to this aspect of the Migration Act:
[24] Sections 48, 48A and 48B prescribe when a non-citizen in Australia (or more accurately in the 'migration zone') may apply for certain visas. Those provisions are designed to control the possible proliferation of visa applications by a particular person.
[25] Generally, only one application for a protection visa may be made by a person in Australia, unless the respondent by written notice permits for a limited period of seven days the making of a further protection visa application: ss 48A and 48B. Such permission may only be given in the public interest. The significance of such permission is indicated by the requirement that the respondent personally must exercise that power, and must expose the decision and the reasons for it before each House of the Parliament. There is a firm legislative policy evident in s 48A and 48B to ensure that, except in the public interest, only one application for a protection visa should be permitted…
39 The text of s 48A states that it applies subject only to s 48B: s 48A(1) of the Migration Act.
40 Section 415 of the Migration Act provides the powers of a Tribunal on review. As the Minister submitted, the text of s 415 reflects that it is only where the Tribunal varies a delegate's decision, or sets aside a delegate's decision and substitutes a new decision, that s 415(3) provides that "the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister". Accordingly, the Minister was correct in contending that the Tribunal's Decision to affirm the Delegate's Decision under s 415(2)(a) is not taken to be a decision of the Minister (or Delegate).
41 In Madafferi v Minister for Immigration & Multicultural Affairs [2002] FCAFC 220; (2002) 118 FCR 326, the Full Court observed at [68]:
By virtue of s 43 of the Administrative Appeals Tribunal Act empowering it to "exercise all the powers and discretions that are conferred by the relevant enactment on the person who made the decision", the AAT stands in place of the primary decision-maker - Otter Gold Mines Ltd v Australian Securities Commission (1997) 26 AAR 99; Liedig v Commissioner of Taxation (Cth) (1994) 50 FCR 461; Commissioner of Taxation (Cth) v Swift (1989) 20 ATR 1434; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. However as was pointed out in Powell v The Administrative Appeals Tribunal and Anor (1998) 89 FCR 1 at 12 (French J) the source of the AAT's power is s 43 of the AAT Act. It does not exercise afresh the power conferred by the enactment under which the decision was made. A fortiori, when it affirms a decision or sets it aside and remits it for reconsideration, it does not exercise a power conferred by the enactment under which the primary decision-maker has made his or her decision. See also Szajntop v Gerber (1992) 23 ATR 403 (Hill J). Analogous reasoning in Daher v Minister for Immigration and Ethnic Affairs (1996) 70 FCR 585 at 507 led North J to conclude that a decision of the Refugee Review Tribunal affirming a decision of the Minister to refuse a visa was not itself a decision to refuse the grant of the visa. The reasoning in Powell led to the conclusion that a decision of the AAT affirming a delegate's decision was not a judicially reviewable decision under the Migration Act and therefore was unaffected by the limitations on the jurisdiction of the Court imposed by Pt 8 as it stood prior to the amendments which came into effect in October 2001.
42 Statements to the same effect were made in Trout v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 583 at [66]-[68] and SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1055; (2022) 179 ALD 156 at [78]-[80].
43 Although the Tribunal may exercise all the powers and discretions conferred upon the original decision-maker, its task in conducting a merits review application is not, in itself, an exercise of a power to grant or refuse to grant a visa. The Tribunal does not decide a visa application under s 65 of the Migration Act. Rather the Tribunal, pursuant to s 500(1)(c) of the Migration Act, conducts a review of the decision to refuse the grant of a protection visa under s 65 and arrives at a decision under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) to either affirm, vary, or set aside the decision made under s 65: see s 415 of the Migration Act. The Tribunal in this case did not, contrary to the appellant's submission, make a decision itself refusing to grant the appellant a protection visa. The Tribunal, in affirming the Delegate's Decision, "made a decision which operated upon the initial decision of the delegate": Daher v Minister for Immigration and Ethnic Affairs [1996] FCA 1011; (1996) 70 FCR 585 at 587. As explained below, nothing in [70] of Plaintiff M174/2016 suggests otherwise.
44 As the Minister correctly noted, the exercise of power by the Assistant Minister under s 417(1) of the Migration Act to grant the appellant a visitor visa is not the exercise of the power under s 415 (which provides the Tribunal's powers). It is not the exercise of the power in s 415(2)(d) to set aside the Delegate's Decision and substitute a new decision. The Assistant Minister did not set aside the Delegate's Decision. We note that s 417 only provides for the substitution of a decision, which is to be contrasted with the Tribunal's powers under s 415 which include the power to "set the decision aside and substitute a new decision".
45 Against that background, we turn to consider Plaintiff M174/2016.
46 In that case, the High Court was concerned with the jurisdiction of the Immigration Assessment Authority under Part 7AA of the Migration Act to review a decision of a delegate said to be affected by jurisdictional error, and the application of the principle of construction arising from Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd [1979] FCA 37; (1979) 24 ALR 307 (Brian Lawlor). That principle of construction is that the reference in s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) to a "decision" in respect of which an enactment might provide for review by that Tribunal, is a reference to nothing more than "a decision in fact made, regardless of whether or not it is a legally effective decision": Brian Lawlor at 342; see also Plaintiff M174/2016 at [39].
47 Paragraph [70] of Plaintiff M174/2016 (which is the basis for the appellant's submission) is to be considered in that context. It is appropriate to refer also to [18] and [40] of Plaintiff M174/2016 (referred to by the parties in submission).
48 At [18] of Plaintiff M174/2016, Gageler, Keane and Nettle JJ observed:
The effect of the Authority affirming the fast track reviewable decision under review is that it is no longer solely the decision of the Minister or delegate to refuse to grant the visa, but rather the decision as affirmed by the Authority, that constitutes the determination of the fast track applicant's valid application for a protection visa. That effect of the Authority affirming the fast track reviewable decision under review bears on the nature of a fast track reviewable decision that is capable of being the subject of that review in a manner which will be explored later in these reasons.
49 At [40], Gageler, Keane and Nettle JJ observed:
The Brian Lawlor construction was applied by the Full Court of the Federal Court to former references in the Act to "decisions" of the Minister or of a delegate capable of being reviewed by each of the former Refugee Review Tribunal and the former Migration Review Tribunal. A pertinent example, to which the Minister draws attention in the present case, is Kim v Minister for Immigration and Citizenship. The Migration Review Tribunal was there held to have had both jurisdiction to review, and power to affirm, a decision of a delegate which had been conceded to be invalid in a prior proceeding for relief under s 39B of the Judiciary Act 1903 (Cth). The affirmation was held to have resulted in a valid affirmed decision which operated from the date of the invalid original decision.
50 In that context, Gageler, Keane and Nettle JJ observed at [70] that:
The reason is not that review by the Authority in some way "cures" a defect of jurisdiction in the decision of the Minister or delegate that is under review. The reason is that, once a fast track reviewable decision is affirmed by the Authority, it is the order of the Authority operating by force of s 473CC(2)(a) of the Act to affirm the decision of the Minister or delegate that alone gives the decision of the Minister or delegate legal operation. Once affirmed by the Authority, the decision of the Minister or delegate has no independent continuing legal operation by force of s 65 of the Act, whether actual or purported. For that reason, any defect of jurisdiction in the decision of the Minister or delegate can simply have no bearing on the legal position of the referred applicant [emphasis added].
51 The jurisdictional error relied on in Plaintiff M174/2016, said to be a breach of s 57 of the Migration Act, was not established: Plaintiff M174/2016 at [72]. The plurality relevantly found that the fast track reviewable decision (the delegate's decision) was "nothing more than a decision to refuse to grant a protection visa to [the plaintiff] that is made in fact": Plaintiff M174/2016 at [69], see also at [52], and therefore the challenge to the delegate's decision had to fail (because of the reasons explained in [70] of Plaintiff M174/2016) "unless the plaintiff's challenge to the Authority's decision can succeed on an independent ground": Plaintiff M174/2016 at [69].
52 It is the italicised sentence in [70] of Plaintiff M174/2016 - that "[o]nce affirmed by the Authority, the decision of the Minister or delegate has no independent continuing legal operation by force of s 65 of the Act, whether actual or purported" - which is the basis for the appellant's submission. On the appellant's submission, two consequences follow from that sentence: the Delegate's Decision ceases to have legal effect, and the Tribunal's Decision is the decision to refuse the appellant a protection visa. Based on that reasoning, the appellant's submission is that when the Tribunal's Decision to refuse a protection visa is substituted by the Assistant Minister's Decision to grant the appellant a three month visitor visa, there is no longer any decision refusing the appellant a protection visa. On that basis, s 48A does not apply, as the appellant has not already been refused a protection visa.
53 That reasoning cannot be accepted.
54 As the Minister correctly submitted, the Tribunal's Decision is not a decision to refuse a visa under s 65 of the Migration Act, but is the affirmation of the Delegate's Decision to do so. The power in s 415(2)(a) is to affirm the Delegate's Decision. That is not altered by the fact that the Delegate's Decision ceases to have independent legal effect once the Tribunal has affirmed the decision. The character of the Tribunal's Decision is not altered. The decision to refuse a protection visa is no longer a decision solely of the Delegate, but rather it is a decision affirmed by the Tribunal. It is the Tribunal's affirmation that gives that decision continuing force - the Delegate's Decision had legal effect before the Tribunal's affirmation occurred. To use the language in [70] of Plaintiff M174/2016, it is the order of the Tribunal, here operating by force of s 415(2)(a), to affirm the decision of the Delegate that gives the decision of the Delegate its continuing legal operation. Contrary to the appellant's submission, the Tribunal's Decision does not substitute the Delegate's Decision, it gives it continuing legal effect. The power of a Tribunal to substitute a decision under s 415(2)(d) is limited to circumstances where a decision is set aside. In this case, the Delegate's Decision was never set aside, but rather it was affirmed.
55 The appellant's submission proceeds as if the Delegate's Decision is forever extinguished because it has no independent legal force once affirmed by the Tribunal. However the Delegate's Decision does not disappear or cease to exist. As a matter of fact that decision remains. It is that decision which is affirmed by the Tribunal, and to which continuing legal operation is given. It is that decision which refused the protection visa. That decision has not been set aside.
56 If the Tribunal's Decision has no legal effect, or no longer has legal effect, the Delegate's Decision has legal effect in its own right. It has not been set aside.
57 The parties also referred to Kim v Minister for Immigration and Citizenship [2008] FCAFC 73; (2008) 167 FCR 578 (Kim). The Minister drew particular attention to [23] of Kim, where Tamberlin J (with whom Besanko J agreed at [42]) said:
It is now settled law that an affirmation of a decision of the delegate by the Tribunal has the effect that the decision of the delegate is the original decision which continues to operate and is not substituted by the later decision of the Tribunal: see Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246 at 249-50.
58 A debate occurred at the hearing as to the status of Kim in light of Plaintiff M174/2016.
59 As seen at [49] above, the plurality in Kim was referred to at [40] of Plaintiff M174/2016 for the proposition that the affirmation in that case was held to have resulted in a valid affirmed decision which operated from the date of the invalid original decision. As the Minister submitted, Kim was referred to without criticism. Plaintiff M174/2016 did not overrule Kim or doubt its correctness. Paragraph [23] of Kim, read in context, is not inconsistent with Plaintiff M174/2016. The Delegate's Decision is not substituted by the later decision of the Tribunal. Rather, the Tribunal's Decision affirming the Delegate's Decision gives it continuing legal effect. The Delegate's Decision has no legal effect independent of that affirmation by the Tribunal.
60 Chou also does not assist the appellant. In Chou, the effect of an erroneous Tribunal decision affirming the cancellation of a visa (in relation to a mother) was considered in respect of a consequential cancellation decision which had been made by the Tribunal (in relation to her child). The appellant relied on the following passage in Chou:
[142] The Minister contended that the cancellation of Ms Chou's visa by the delegate, which underpinned the decision in relation to Sebastian, remained in force unless and until set aside by the AAT. Therefore the AAT's second decision concerning Sebastian should not be quashed if the AAT's first decision concerning Ms Chou was set aside. This submission is not to be accepted.
[143] As the appellants contended in their supplementary submissions in reply dated 29 June 2021, from 8 February 2018 (when the AAT affirmed the delegate's cancellation decision in respect of Ms Chou), the delegate's decision had no independent continuing operation, nor did the AAT's order affirming that decision give the delegate's decision continuing legal operation (see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [70] per Gageler, Keane and Nettle JJ). Contrary to the Minister's submission, the AAT's second decision was not "underpinned" by the delegate's earlier decision to cancel Ms Chou's visa. The true position is that the AAT's second decision depended for its validity upon the validity of its first decision (which affirmed the cancellation of Ms Chou's visa). It necessarily follows that because that first decision was affected by jurisdictional error and is invalid (contrary to the primary judge's conclusion), the AAT's second decision is affected by the same error and must be set aside as invalid. Ground 5 is accordingly upheld.
61 The reasoning on this ground in Chou was that the Tribunal's decision in relation to the son depended on the validity of the decision in relation to his mother. As jurisdictional error existed in the decision relating to the mother, the second decision relating to the son was also affected by that error.
62 As the Minister submitted, there is no factual similarity between Chou and the circumstances in this case. Chou does not address ss 48, 48A, 48B, 415 or 417 of the Migration Act. Unlike in Chou, neither the Delegate's Decision nor the Tribunal's Decision in this case are affected by jurisdictional error. Chou says nothing about the circumstances in this case. Moreover, nothing in Chou can go higher that the purported underlying source, being the reference to Plaintiff M174/2016, and for the reasons above, that case does not support the appellant's contentions.
63 Returning to this case, the Assistant Minister's exercise of his power under s 417(1) of the Migration Act to grant the appellant a three month visitor visa, which is accepted to be a more favourable decision, was not the exercise of the power in s 415. Indeed, as noted by the Minister, the more favourable decision could not have become the outcome of the review pursuant to s 415 of the Migration Act because the Tribunal conducting a review under Division 4 of Part 7 has no power to grant a visitor visa.
64 As contended by the Minister, the substitution effected under s 417(1) was simply to give a visa where there was none, albeit one of a different kind from that for which the appellant had applied and which could not have been granted by the Tribunal. That did not alter the present position as to whether the appellant could validly apply again for a protection visa. The Assistant Minister's Decision did not alter history. Even if it substituted the Tribunal's Decision, it says nothing about the Delegate's Decision, or the entitlement of the appellant to a protection visa. The Assistant Minister did not set the Delegate's Decision aside. The exercise of the power in the Assistant Minister's Decision did nothing to alter the fact that the appellant had previously been refused a protection visa. Rather, the Assistant Minister granted the appellant a different visa under s 417 of the Migration Act, a provision that expressly does not depend upon a person satisfying any prescribed criteria for the grant of a visa.
65 The Delegate's Decision to refuse the protection visa remained even once the more favourable decision to grant a three month visitor visa had been substituted for the Tribunal's Decision. For the reasons given above, its legal operation remained. All the s 417 exercise of power did was substitute the Tribunal's Decision by granting the appellant a visitor visa.
66 As a consequence, the appellant's second visa application dated 12 October 2017, was invalid.