Minister for Immigration and Border Protection v CTW17

JUDGES: ROBERTSON, FARRELL AND WIGNEY JJ DATE OF ORDER: 5 September 2019

1. The appeal be allowed.
2. The orders and declaration made by the Federal Circuit Court on 15 March 2019 be set aside and in their place order: (i) the application be dismissed. (ii) subject to order 4, the applicant pay the respondent's costs of and incidental to the proceedings.
3. Subject to order 4, the respondent pay the appellant's costs of and incidental to the appeal.
4. If either party wishes to contend for a different costs order, that party is to notify the other party and the associate to Robertson J within seven days of the date of this order. In that event each party is to file and serve, within a further seven days, written submissions, limited to 3 pages, in support of the costs order for which that party contends, and the issue of costs will then be determined by the Court on the papers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 These three appeals from a judgment of a judge of the Federal Circuit Court of Australia delivered on 28 February 2019 raise a single question of statutory construction. 2 The ultimate issue is whether three separate protection visa applications sent to the Department on 20 June 2017 on behalf of the three respondents, who were then children, were valid. 3 The primary judge held, at [155], that those applications were valid on the basis that s 48A(1AA) of the Migration Act 1958 (Cth) did not apply to prevent (and hence render invalid) the respondents' 2017 applications based on the complementary protection criterion. In elaboration, the primary judge said, at [156]: As the Applicants submitted, s.48A(1AA) as it stood in June 2017 did not prevent a non-citizen on whose behalf a 2010 protection visa application had been made based on the family unit criterion (that is as referred to in s.36(2)(b) of the Act) from making (or having made on his or her behalf) a further application for a protection visa in 2017 based on the complementary protection criterion introduced by the [Migration Amendment (Complementary Protection) Act 2011 (Cth)] as referred to in s.36(2)(aa) of the Act.

The factual background 4 The relevant facts are short. As found by the primary judge, the respondents are children of a Fijian couple. CTU17 was born in Fiji in 2000. CTV17 was born in Fiji in 2001. CTW17 was born in Fiji in 2004 and is therefore still a minor. They came to Australia in 2006. 5 On 19 November 2010 the respondents' father made an application for a protection visa (the 2010 application). He included his wife and the respondents as members of his family unit. None of the respondents (at that time aged 10, 9 and 6) signed any part of the 2010 visa application forms. Their father signed the forms, including the Declarations and Australian Values Statements on the Part D Forms completed for each of the respondents. 6 In the 2010 application the father made claims to fear harm in Fiji said to arise from his position and activities as a police officer during the 2000 military coup. He also expressed a general concern that he and his family would be in danger if they returned to Fiji because of the possibility of retribution from rebel soldiers who had been released from prison. He relied on the Refugees Convention criterion (see s 36(2)(a) of the Migration Act). 7 On 29 June 2011 a delegate of the Minister refused the 2010 application. The delegate was not satisfied that the father had a real chance of being subjected to harm amounting to persecution for a Convention reason in Fiji. The applications of his wife and the respondents as members of his family unit were also refused. 8 The respondents' father sought review of the delegate's decision (including the respondents in the review application) on 12 August 2011. On 6 October 2011 the Refugee Review Tribunal determined that it did not have jurisdiction, as the application was not received until after the prescribed period for seeking review had expired. 9 As we have indicated, on 20 June 2017 the respondents' representative sent separate protection visa applications to the Department on behalf of the respondents (the 2017 applications). The visa application forms were signed by the respondents' father. The claims for protection made by each respondent were the same in essential respects. It was claimed that the respondent could be harmed by persons who had been arrested by their father in the past, but had later been released from prison and may seek revenge. Concerns were also raised about conditions in Fiji. In particular, it was claimed that a reduction in the respondent's standard of living due to poverty, lack of access to quality healthcare and clean drinking water, the interruption to his or her education and/or limited access to secondary education would cause him or her to be treated in an inhumane, cruel and degrading manner. It was claimed that Fiji could not provide the respondent with a standard of living adequate for his or her physical, mental, spiritual, moral and social development. Reference was made to Article 27 of the United Nations Convention on the Rights of the Child. 10 In separate covering letters to the Department in relation to each of the 2017 applications, the respondents' migration agent disclosed that each respondent had previously been included as a dependent applicant in his or her father's protection visa application (the 2010 application). However, it was claimed that the 2017 applications were made in reliance on the judgment in SZVBN v Minister for Immigration and Border Protection [2017] FCAFC 90; 254 FCR 393, decided on 7 June 2017, concerning the parental authority and the legal capacity of children and in such circumstances, it was claimed, s 48A did not render the 2017 applications invalid. 11 On 22 June 2017 the respondents were notified that their applications were invalid. Each notification stated: A decision has previously been made to refuse to grant you a protection visa, or you have had a protection visa cancelled. Under section 48A of the Migration Act 1958 a person who has not left Australia since their protection visa was refused or cancelled is prevented from making a subsequent protection visa application while they remain in Australia. 12 It was common ground that the validity of the 2017 applications was a matter for the Court.

The statutory provisions 13 The key statutory provisions as at the date of the 2017 applications were as follows: 48A No further applications for protection visa after refusal or cancellation (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, or have a further application for a protection visa made on his or her behalf, while the non- citizen is in the migration zone. (1AA) Subject to section 48B, if: (a) an application for a protection visa is made on a non-citizen's behalf while the non-citizen is in the migration zone; and (b) the grant of the visa has been refused, whether or not: (i) the application has been finally determined; or (ii) the non-citizen knew about, or understood the nature of, the application due to any mental impairment; or (iii) the non-citizen knew about, or understood the nature of, the application due to the fact that the non-citizen was, at the time the application was made, a minor; the non-citizen may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non-citizen is in the migration zone. (1A) … (1B) … (1C) Subsections (1) and (1B) apply in relation to a non-citizen regardless of any of the following: (a) the grounds on which an application would be made or the criteria which the non-citizen would claim to satisfy; (b) whether the grounds on which an application would be made or the criteria which the non-citizen would claim to satisfy existed earlier; (c) the grounds on which an earlier application was made or the criteria which the non-citizen earlier claimed to satisfy; (d) the grounds on which a cancelled protection visa was granted or the criteria the non-citizen satisfied for the grant of that visa. (1D) … (1E) … (2) In this section: application for a protection visa means: (aa) an application for a visa of a class provided for by section 35A (protection visas - classes of visas), including (without limitation) an application for a visa of a class formerly provided for by subsection 36(1) that was made before the commencement of this paragraph; or Note: Visas formerly provided for by subsection 36(1) are provided for by subsection 35A(5). Subsection 36(1) was repealed by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, which also inserted section 35A and this paragraph. (aaa) an application for a visa, a criterion for which is that the applicant is a non-citizen who is a refugee; or (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; or (b) an application for a decision that a non-citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; or (c) an application covered by paragraph (a) or (b) that is also covered by section 39 of the Migration Reform Act 1992.

The submissions of the parties 14 The Minister submitted that, on the primary judge's findings, each of the 2017 applications was "an application for a visa of a class provided for by s 35A". Since the 2010 application had been made on the respondents' behalf, and was also "an application for a visa of a class provided for by s 35A", s 48(1AA) operated, in accordance with its terms, to preclude the making of the 2017 protection visa applications on behalf of the respondents while they were in the migration zone. 15 The Minister submitted that the primary judge recognised, at [112], that paragraph (aa) of the definition of "application for a protection visa" in s 48A(2) no longer contained any reference to a criterion for a visa, as distinct from a class of visa. Pursuant to the Migration Amendment Act (No 1) 2014 (Cth), which was enacted subsequent to the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235, Parliament had repealed paragraph (aa) of the definition of "application for a protection visa" in s 48A(2) and replaced it in terms which were not dissimilar to its current terms. The primary judge erred by applying the reasoning in SZGIZ as if this amendment had not been made, the Minister submitted. 16 The respondents submitted that the primary judge was correct to hold that s 48A(1AA) did not prevent a person in the present circumstances from making a further protection visa application. The respondents submitted that s 48A(1C) - which was introduced into s 48A to overcome the decision in SZGIZ - clearly and explicitly did not apply to s 48A(1AA). The respondents submitted that the primary judge correctly observed, at [120], that the Minister's preferred construction of s 48A would render s 48A(1C) "entirely superfluous", contrary to the principle to statutory interpretation expounded by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [71]. 17 Senior counsel for the respondents emphasised: that s 48(1C) was an operative provision; that the essence of the reasoning of the Full Court in SZGIZ, particularly at [55], was that the critical word was "further" in the phrase "further application"; and that s 48(1C) did not extend the meaning of the word "further". Whether or not paragraph (aa) of the definition of "application for a protection visa" applied, it did not deal with the "further application" point in s 48A(1AA), it was submitted. 18 The respondents submitted that the extrinsic materials, in particular the explanatory memorandum on the introduction of s 48A(1C) as set out at [137]-[138] of the reasons of the primary judge, did not suggest that there was anything special about s 48A(1AA) in the context of s 48A which would mean that s 48A(1C) would not need to apply to it. 19 The respondents did not press their subsidiary contention to the effect that s 48A(1AA) only applied in respect of an "earlier" protection visa that was made after the commencement of s 48A(1AA) on 25 September 2014.

Consideration 20 The Minister did not submit that s 48A(1C) should be read as though it did contain a reference to s 48A(1AA) which had been omitted by mistake: compare Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation [1981] HCA 26; 147 CLR 297. 21 The Minister submitted that s 48A(1AA) applied according to its terms, when read with the definition of "application for a protection visa" in paragraph (aa) of s 48A(2). 22 The primary judge held, at [155] and [257], that the 2010 application was an application for a protection visa within paragraph (aa) of the definition of "application for a protection visa" in s 48A(2). The primary judge also held, at [255]-[256], that the 2010 application was made on the respondents' behalf while they were in the migration zone for the purposes of s 48A(1AA)(a). 23 The question then becomes whether each of the 2017 applications falls within the proscription "the non-citizen may not … have a further application for a protection visa made on his or her behalf, while the non-citizen is in the migration zone" within the meaning of s 48A(1AA). It is plain that that provision was introduced to address the issue of a visa applicant's knowledge or understanding of the nature of a protection visa application and to preclude the reasoning in Minister for Immigration and Border Protection v Kim [2014] FCAFC 47; 221 FCR 523. 24 We accept that, reading paragraph (aa) of the definition according to its terms, each of the 2017 applications was an application for a protection visa within that paragraph: see also the conclusion of the primary judge at [260]. As the primary judge noted at [259], it was not disputed that the 2017 applications were also made on the respondents' behalf. 25 Before the Migration Amendment (Complementary Protection) Act 2011 (Cth), the definition of "application for a protection visa" "notably omitted any reference to an application for a protection visa based on a criterion relating to complementary protection grounds": see SZGIZ at [10]. That was because that concept was only introduced by that Act into the Migration Act from 24 March 2012. 26 The essential reasoning of the Court in SZGIZ involved, first, the reference to "a criterion" in paragraph (aa) of the definition in s 48A(2) and, second, the word "further" in s 48A(1). The Court also reasoned that the reference in s 48A(1)(a) to "where the grant of the visa has been refused" was plainly a reference to the refusal of an application for a protection visa made on the basis of the criteria mentioned in one of the four specified paragraphs in s 36(2). On that basis the Full Court held that s 48A was confined in its operation to the making of a further application for a protection visa which duplicated an earlier unsuccessful application for a protection visa, in the sense that both applications raised the same essential criterion for the grant of a protection visa. It was said that this also accorded with common sense. 27 Section 48A(1AA) still uses the word "further" but paragraph (aa) of the definition in s 48A(2) of "application for a protection visa" no longer proceeds by reference to a criterion but to "a visa of a class provided for by section 35A (protection visas - classes of visas)". 28 The primary judge, in effect, found a negative implication arising from the terms of s 48A(1C), which do not refer to s 48A(1AA). 29 It is said that the ordinary meaning of the definition of "application for a protection visa" would give s 48A(1C) no work to do in relation to the provisions to which it does, in terms, apply, being ss 48A(1) and (1B). 30 In our opinion, contrary to the conclusion of the primary judge, no negative implication is to be drawn from the absence of a reference to s 48A(1AA) in s 48(1C). 31 Further, contrary to the reasoning of the primary judge, in our opinion s 48A(1C) was not needed to apply to s 48A(1AA) in order for that subsection to have the effect for which the Minister contended. 32 The legislative history, referred to by the primary judge at [137]-[138], should not be taken to qualify the text of s 48A. Also, as submitted on behalf of the Minister, the extracts from the explanatory memorandum suggest that s 48A(1C) and paragraph (aa) of the definition of "application for a protection visa" in s 48A(2) were directed to the same end. That is, both provisions were directed to clarifying and reinforcing the operation of s 48A as a bar on making subsequent protection visa applications irrespective of whether the subsequent application was based on a different criterion to that which formed the basis for the previous application, or a criterion or ground that did not exist earlier. 33 We do not accept the submission on behalf of the respondents that the judgment in SZGIZ should be read as turning on the meaning of the word "further". In our opinion, what was important was that "application for a protection visa" was then defined to "include", rather than "mean", an application for a protection visa a criterion for which was mentioned in specified paragraphs of s 36. As to the centrality of the definition of "application for a protection visa" in s 48A(2) to the conclusion of the Court in SZGIZ, we refer in particular to [28] of the judgment where the Full Court said: Protection visas constitute a class of visas by reason of the operation of s 36(1) of the Act. Were it not for the terms of s 48A(2) of the Act it is highly arguable that s 48A(1) would have the effect (for which the Minister contends) that an unsuccessful prior application for a visa of that class (ie a protection visa) would block any further application for a visa of that class while an applicant remained in the migration zone (as the appellant does). However, s 48A(1) must be read in conjunction with the definition in s 48A(2) of "application for a protection visa". In the Court's view, that produces a different result. 34 It was when the statutory direction in s 48A(2) was taken into account that the Court said, at [32], that the proper effect to be given to the term "further" was that it referred to an application relying upon the same criterion as an earlier application. 35 What the primary judge referred to as the post-SZGIZ Act, the Migration Amendment Act 2014 (Cth), inserted s 48A(1C) and repealed and replaced paragraph (aa) of the definition of "application for a protection visa" in s 48A(2). 36 The explanatory memorandum relevantly read as follows: 129. New paragraph 48A(2)(aa) provides that in section 48A, an "application for a protection visa" includes an application for a visa that, under the Migration Act or the regulations as in force at any time, is or was a visa of the class known as protection visas. 130. This amendment clarifies the definition of "application for a protection visa" in section 48A of the Migration Act to include an application for a visa that, under the Migration Act or the regulations as in force at any time, is or was a visa of the class known as protection visas. It is a clarification of the position and intended meaning of that phrase. It is expressed broadly to ensure all applications for a visa, that is, or was, a visa of the class known as protection visas, including temporary protection (Subclass 785) visas and permanent protection (Subclass 866) visas, are captured for the purposes of section 48A. Any visa created in the future which is a visa of the class known as protection visas will be captured by this provision. 131. This amendment reinforces the intention that the statutory bar in section 48A of the Migration Act applies to prevent a non-citizen, while in the migration zone, who has been refused a protection visa, or held a protection visa that was cancelled, from making a subsequent protection visa application in the migration zone regardless of whether the further protection visa application would be made based on a different criterion to that which formed the basis of a previous unsuccessful protection visa application, or a criterion or grounds that did not exist earlier. 37 Section 48A(1AA) was added by the Migration Legislation Amendment Act (No. 1) 2014 (Cth), which relevantly commenced on 25 September 2014. 38 As at the time of the 2017 application, as we have said at [27] above, paragraph (aa) of the new definition of "application for a protection visa" identified those protection visas not by reference to criteria but as a class. 39 Thus, in our opinion, contrary to the conclusion of the primary judge, the reasoning and conclusion in SZGIZ were displaced by the enactment by the Parliament of the Migration Amendment Act 2014. 40 In light of the terms of the legislation, we are not persuaded to a different construction by the respondents' reliance on the terms of Australia's international obligations, referred to in SZGIZ at [56]-[62]. As the Full Court there noted, that approach does not deny the central task with which the Court is concerned: the construction of a law of the Parliament. 41 We were taken to AZABF v Minister for Immigration and Border Protection [2015] FCAFC 174; 235 FCR 150 but there the present point, the effect of paragraph (aa) of the definition in s 48A(2) of "application for a protection visa", was not argued. That decision is therefore of no present assistance.

Conclusion and orders 42 For these reasons, we allow the appeals and make the consequential orders sought by the appellant. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Robertson, Farrell and Wigney.