Minister for Immigration and Border Protection v SZVCH

Federal Court of Australia (Full Court)|2016-09-14|Before: Mortimer JJ

Introduction 6 We have had the advantage of reading the reasons for judgment prepared by Mortimer J. For the following reasons, we agree with her Honour that the appeal should be allowed. 7 The first respondent (identified as SZVCH in the Federal Circuit Court of Australia and on appeal to this Court) arrived in Australia on 10 March 2006 and made an application for a protection visa on 1 March 2010. A delegate of the appellant Minister refused this application on 11 June 2010. The Refugee Review Tribunal (now the Administrative Appeals Tribunal) affirmed the delegate's decision not to grant SZVCH a protection visa on 27 June 2011. 8 On 18 March 2014, SZVCH made a second application for a protection visa. In an accompanying letter of the same date, his migration agent stated that this application was "expressly made in reliance only on s 36(2)(aa)" of the Migration Act 1958 (Cth) (Migration Act). The author of the letter explained that: No previous application relying on this ground has been made, as it was not possible to do so before 24 March 2012. An "application for a protection visa" is defined in subsection 48A(2) as an application for a visa criterion ... mentioned in paragraph 36(2)(a), (aa), (b) OR (emphasis added) (c). The applicant has never before applied in reliance on 36(2)(aa), and in fact could not have done so. In our submission, the exclusion can be interpreted in two possible ways: either it prevents an application being made now despite the grounds on which it is made not having been available in the past, or it only prevents an application made now if the grounds relied on were available in the past. ... It is ... submitted that the correct interpretation of subsection 48A(2) is that it does not prevent an application being made now in reliance on the Complementary Protection grounds if a prior application was made and finalized before those grounds were available for consideration. (Original emphasis.) 9 A delegate of the Minister refused this second application on 10 June 2014. The decision record showed that the delegate did not limit consideration of the visa applicant's claims to s 36(2)(aa) (the complementary protection criterion) but also considered these claims under s 36(2)(a) (the Refugees Convention criterion). The delegate was not satisfied that Australia had protection obligations to the visa applicant under the Refugees Convention as amended by the 1967 Refugees Protocol (Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees, done at New York on 31 January 1967) or under s 36(2)(aa) of the Migration Act. 10 The Tribunal affirmed this decision on 28 August 2014. In so doing the Tribunal expressly confined its consideration to s 36(2)(aa) and (c) (member of the same family unit as a non-citizen with a protection visa by virtue of s 36(2)(aa)), notwithstanding that late in the Tribunal hearing the first respondent's representative sought to persuade the Tribunal to consider the s 36(2)(a) criterion as well. The first respondent's representatives reiterated this submission in a post-hearing letter to the Tribunal dated 12 August 2014. 11 SZVCH successfully applied to the Federal Circuit Court for judicial review of this decision. The learned Federal Circuit Court judge held that: (1) the effect of the decision of the Full Court of this Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71, 212 FCR 235 was that s 48A of the Migration Act prevented a visa applicant making a valid application "in respect of a particular criterion in circumstances where an application in respect of that criterion had already been determined" but that s 48A did not prevent a valid application "in respect of a particular criterion which was not the subject of a previous application": SZVCH v Minster for Immigration & Anor [2015] FCCA 2950 (PJ) at [24]. His Honour held that, in the circumstances of this case, SZVCH could therefore only make a valid application in respect of a claim under s 36(2)(aa) but that it was open to the Minister's delegate to consider this valid visa application by reference to both the criteria in s 36(2)(a) and (aa): PJ, [25]-26]. His Honour concluded that, since the Tribunal was bound to review a contested decision "in its entirety", then the Tribunal was obliged to consider the applicability of both criteria where the delegate had elected to do so; and in the present case the Tribunal fell into jurisdictional error by failing to do so: PJ, [26]. 12 The Minister appealed against the judgment of the Federal Circuit Court, upon the grounds that the primary judge erred in holding that the Tribunal was required or permitted to consider whether SZVCH satisfied not only the criterion in s 36(2)(aa) but also the criterion in s 36(2)(a). In a third (and expressly alternate) ground, the Minister affirmed that the primary judge erred "in failing to find that the visa application made by [SZVCH] on 18 March 2014 was invalid by reason of the operation of s. 48A" of the Migration Act. 13 At the hearing, the first respondent, SZVCH, relied on an amended notice of contention seeking to support the judgment under appeal on the sole basis that: The primary judge erred in finding, at AB386[26], that the Tribunal was obliged to consider the refugee criterion only because the Delegate had elected to do so. The Tribunal was obliged to consider the refugee criterion even if the Delegate had not done so because the [First] Respondent (the Applicant in the Court below) relied on that criterion at the hearing before the Tribunal. Particulars A claim based on the refugee criterion was raised at the Tribunal hearing, see transcript AB368L23-33, and by a letter from the legal representatives of the [First] Respondent to the Tribunal at AB229. 14 The Minister did not oppose the first respondent's amendment to the notice of contention. It is unnecessary to detail the first respondent's original grounds of contention, as these were abandoned by the amendment.

The Parties' Submissions 15 We would emphasize that the first two of the Minister's grounds of appeal did not involve a challenge to the correctness of SZGIZ 212 FCR 235. In support of these two grounds, the Minister relied particularly on the reasons of Markovic J in AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424 at [31]-[50], noting that AMA15 was consistent with AOM15 v Minister for Immigration and Border Protection [2015] FCA 1285 at [9] (Perram J) and was followed in SZRAG v Minister for Immigration and Border Protection [2016] FCA 189 at [23] (Katzmann J). The Minister focussed on ss 47, 48A and 65 of the Migration Act, submitting that: (1) the matters that a delegate was permitted or required to consider were "determined by the scope of a validly made application"; and (2) "in the context of the Act as a whole, it is clear that the matters the Delegate must consider are framed by reference to the matters which may be the subject of a valid application". The Minister also submitted that an error on the delegate's part could not expand the jurisdiction of the Tribunal. The Minister contended that, although "a visa applicant can seek to change which of the criteria in s 36(2) he or she seeks to satisfy at any stage, including on review" (citing SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91, 168 FCR 487 at [73]-[93] and SZOVB v Minister for Immigration and Citizenship [2011] FCA 1462, 125 ALD 38 at [62]), this did not mean that the Tribunal had jurisdiction to consider an application where the proposed change would make the application invalid. The Minister also submitted that the Tribunal had no obligation to consider visa criteria that were not raised in the visa application (citing Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1, 211 CLR 441 at [31]-[32] and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2003] FCAFC 263, 144 FCR 1 at [62]) and that this principle applied where the particular visa criterion was unable to be raised in a valid application because of s 48A. 16 The Minister's challenge to the correctness of SZGIZ 212 FCR 235 was made only in support of the third ground of appeal, which was cast as an alternative to the first two grounds. In support of this ground only, the Minister submitted that the construction of s 48A favoured by the Full Court in SZGIZ was inconsistent with the text and structure of the Migration Act. Referring to Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33, 210 FCR 505 at [71], the Minister submitted that an application for a protection visa was an application for a visa of the particular class created by s 36 and that it was not an application for a visa on the basis of a particular criterion. The Minister submitted that the constructional choice in SZGIZ involved an erroneous understanding of the word "further" in s 48A. The Minister also contended that SZGIZ gave insufficient weight to the expansive nature of the definition in s 48A as originally enacted, which confirmed that the phrase "application for a protection visa" was intended to have its natural meaning within the context of the Migration Act. The Minister drew attention to the original form of the definition of "application for a protection visa", noting that each of the matters that were originally included in the definition related to an application under a previous statutory regime and that they were not matters that, on a current understanding, would readily come within the phrase "application for a protection visa". Senior counsel for the Minister, Mr Kennett SC, submitted that the definition served the function of bringing the "hangovers from earlier regimes within the phrase". Further, citing YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395 at 403-405, the Minister submitted that SZGIZ 212 FCR 235 erroneously held that the words "means" and "includes" did not assist in construing s 48A(2) and contended that there was a "consistent distinction" between the use of these words in the Migration Act that supported the Minister's construction. The Minister also submitted that SZGIZ gave insufficient weight to the relevant extrinsic material and the legislative history. The Minister specifically referred to Dranichnikov v Minister for Immigration [2001] FCA 769, 109 FCR 397, the Explanatory Memorandum to the Migration Legislation Amendment Bill (No 6) 2001 (Cth) at [13] and [15], the Second Reading Speech on that Bill (see Australia, House of Representatives, Debates (2001), Vol HR13, 28 August 2001, pp 30423-4) and the Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011 (Cth) at [101]-[105] on the basis that these materials confirmed the existence of a legislative intention to prevent repeated applications for protection visas, whether based on Refugee Convention grounds or complementary protection grounds, and whether based on personal claims or as a member of a family unit. The Minister submitted that these considerations invited the conclusion that SZGIZ 212 FCR 235 was plainly wrong. 17 The first respondent submitted, in response, that once a further application was validly made under the Migration Act, then s 47 treated the whole of the application as a valid application and that the decision-maker was required by s 65 to consider all the criteria for the visa class for which application was made, which in this case included the criterion in s 36(2)(a) as well as in s 36(2)(aa). The first respondent supported this submission by reference to ss 45, 50, 65 and 414 of the Migration Act. Counsel for the first respondent, Ms Baw, submitted in effect that the decision-maker would consider all criteria for a protection visa, but would be entitled to conclude that, having regard to s 50 and the findings of earlier decision-makers on information previously considered, a criterion was not satisfied. Referring to the Explanatory Memorandum to the Migration Legislation Amendment Bill (No 6) 2001 (Cth) at [13] and [15] and to the Second Reading Speech on that Bill (see [16] above), Ms Baw submitted that s 48A was not directed to the circumstances of the first respondent's case, but was directed to the case where a visa applicant had chosen not to take up an opportunity that was there in the first place to make a protection visa application based on all relevant criteria. The first respondent submitted that AMA15 [2015] FCA 1424 was inconsistent with SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another [2006] HCA 63, 228 CLR 152 at [33]-[35]; and that Applicants S134/2002 211 CLR 441 and NABE 144 FCR 1 were not relevant here. The first respondent further submitted that the Tribunal was required to undertake a review of the particular decision made by the delegate, including all the issues relating to that decision. The first respondent submitted that it was not permissible for the Tribunal to limit its consideration to the issues identified by the delegate; although it was permissible for the Tribunal to consider additional issues that it identified as relevant. The first respondent submitted that the Minister's construction, which placed jurisdictional limits on the Tribunal in this regard, was unsupported by authority. 18 Citing SZGIZ 212 FCR 235 at [59]-[60], the first respondent submitted that SZGIZ was consistent with established authority that favours a construction that gives effect to Australia's international obligations and that SZGIZ was consistent with the purpose of s 48A(2), as stated in the Second Reading Speech of the Migration Legislation Amendment Bill (No 6) 2001 (Cth) at 30423-30424 (see [16] above). 19 In support of the amended notice of contention, the first respondent argued that the Tribunal was obliged to deal with the criterion in s 36(2)(a) because the claim was expressly raised before the Tribunal. The first respondent submitted that the question of Australia's protection obligations, whether under s 36(2)(a) or s 36(2)(aa), was to be determined at the time of the decision, referring to Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55, 204 CLR 1; and that the relevant circumstances might change in the course of the merits review. It would be contrary to any sense of administrative efficiency, so the first respondent submitted, to insist that an application already validly under consideration could not deal with all of the circumstances and facts before it. The first respondent submitted that the Migration Act contemplated such a possibility and has included safeguards against any abuse, referring to ss 416 and 423A. The first respondent reiterated that his argument was that SZGIZ was not inconsistent with these submissions and was "still correct". 20 In response to the first respondent's argument on his amended notice of contention, the Minister accepted that, in the ordinary case, a visa applicant would be entitled to raise new claims before the Tribunal that were not before the delegate, but submitted that the first respondent was not entitled to do so in this case. Having previously made an application under s 36(2)(a), s 48A prevented the first respondent from making a further visa application on that basis. It must follow that s 36(2)(a) was not one of the "criteria for [the visa] prescribed by this Act", within the meaning of s 65(1)(a)(ii), so that satisfying that criterion would not avail the first respondent. Alternatively, the Minister submitted that if the reasoning in SZGIZ was wrong, then the first respondent's second visa application was invalid in its entirety. Either way, so the Minister submitted, the Tribunal had no jurisdiction to consider the first respondent's refugee criterion claim. The Minister further submitted that if he were wrong in this, then the decision in AMA15 [2015] FCA 1424 and the Minister's submissions on the appeal were also wrong. It followed, so the Minister submitted, that the amended notice of contention could succeed only if the appeal failed and it could not provide a separate basis for upholding the judgment of the primary judge.

Consideration 21 In order to understand the difficulties with which this appeal is concerned it is necessary to refer to certain provisions of the Migration Act. 22 In order for a non-citizen to enter and remain in Australia, he or she must have a visa, which, as s 29 of the Migration Act indicates, is a grant by the Minister of permission to so enter and remain. The need for a person who is not an Australian citizen to have this kind of executive permission to enter and remain in Australia underlies the Migration Act. 23 Generally speaking, the Migration Act contemplates that there are classes of visas, as reflected in s 31. Section 31 provides: (1) There are to be prescribed classes of visas. (2) As well as the prescribed classes, there are the classes provided for by sections 32, 33, 34, 35, 36, 37, 37A, 38, 38A and 38B. (3) The regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 32, 36, 37, 37A or 38B but not by section 33, 34, 35, 38 or 38A). (4) The regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both. (5) A visa is a visa of a particular class if this Act or the regulations specify that it is a visa of that class. A non-citizen who wants a visa must apply for a visa of a particular class: s 45(1). 24 Section 36 makes provision for the class known as "protection visas". The first respondent twice applied for a visa in that class. As s 36 indicates, however, there are various alternate criteria for visas in this class. At the relevant time, s 36 provided: (1) There is a class of visas to be known as protection visas. Note: See also Subdivision AL. (2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (aa) 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 (b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who: (i) is mentioned in paragraph (a); and (ii) holds a protection visa; or (c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who: (i) is mentioned in paragraph (aa); and (ii) holds a protection visa. ... 25 When the first respondent made his second application for a protection visa on 18 March 2014, s 48A, which is central to this appeal, was in the following terms: (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: (aa) an application for a visa, a criterion for which is mentioned in paragraph 36(2)(a), (aa), (b) or (c); and (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. Section 48B conferred power on the Minister, in certain circumstances, to determine that the restrictions in s 48A did not apply to a non-citizen. (Amendments designed to undo SZGIZ 212 FCR 235 were made to s 48A by the Migration Amendment Act 2014 (Cth), which came into force on 28 May 2014. Item 5 of Schedule 2 of that Act provided that s 48A as amended applied to making a (second) "application for a protection visa" after that date. The Minister accepted that these amendments did not apply in this case). 26 Broadly speaking, s 48A(1) applies to a non-citizen who has previously made an application for a protection visa that has been refused and prohibits that person from making "a further application for a protection visa", as defined in s 48A(2). In SZGIZ 212 FCR 235 a Full Court of this Court held that, with respect to s 48A as it stood at the relevant time, a visa applicant who makes a second application for a protection visa may nonetheless make a valid application providing the second application is based on a different criterion from that on which the visa applicant's first protection visa application was based. This was because s 48A(1), when read with s 48A(2), did not prevent a person from making an application based on a criterion that was not a part of a previous unsuccessful application for a protection visa. 27 The primary question on this appeal is whether, having regard to SZGIZ 212 FCR 235 and the relevant provisions of the Migration Act, it was permissible (or necessary) for the delegate to consider the first respondent's claims not only by reference to the criterion in s 36(2)(aa), which was the basis for his second valid application, but also by reference to the criterion in s 36(2)(a), which could not have supported a valid application. This is the question raised by the first and second grounds of the Minister's notice of appeal. The answer to this question, assuming SZGIZ to have been correctly decided, lies in the reasoning of the Full Court in that case and in the other relevant provisions of the Migration Act, such as ss 47 and 65(1). 28 We commence with SZGIZ. The circumstances that gave rise to the question of statutory construction in SZGIZ were not materially different from this case. SZGIZ had applied for a protection visa in 2005 invoking a criterion based on the Refugees Convention as amended by the 1967 Refugees Protocol: see SZGIZ 212 FCR 235 at [1]. This application failed. In 2012, SZGIZ made a further application for a protection visa, "based on complementary protection grounds relying on s 36(2)(aa) of the Act which was introduced with effect from 24 March 2012": SZGIZ 212 FCR 235 at [9]. As indicated above, the Court held that the second application was valid, notwithstanding s 48A, on the basis that s 48A(1), when read with s 48A(2), did not prevent a person from making an application based on a criterion that was not a part of a previous unsuccessful application for a protection visa. 29 The heart of the reasoning of the Court was at [29] and [32]-[33], where the Court stated: [29] When the statutory direction as to the meaning of the term "application for a protection visa" is taken into account in the circumstances of the present case, s 48A(1) must be read (relevantly) as follows: 48A(1) Subject to section 48B, a non-citizen who, while in the migration zone, has made: (a) an application for a visa, a criterion for which is mentioned in paragraph 36(2)(a), (aa), (b) or (c), where the grant of the visa has been refused (whether or not the application has been finally determined); … may not make a further application for a visa, a criterion for which is mentioned in paragraph 36(2)(a), (aa), (b) or (c) while in the migration zone. (Italics and emphasis both added.) ... [32] When the statutory direction in s 48(2) is taken into account, the proper effect to be given to the term "further" is that it refers to an application relying upon the same criterion as an earlier application. [33] Upon this construction, the application lodged on 10 October 2012 was not invalid and the FMCA was in error to hold that it was. 30 The Court relied on various considerations to support its constructional choice, including the structure of the definition provision in s 48A(2), which in its opinion defined "an application for a protection visa", relevantly for the purposes of s 48A(1) by reference to whether the application is for a visa which relies on "a criterion" mentioned in any one of the four specified paragraphs in s 36(2), namely s 36(2)(a), (aa), (b) or (c): see SZGIZ 212 FCR 235 at [35]. The Court concluded that the definition in s 48A(2) operated by reference to "the situation where an application is made for a visa which has as one of its criteria any of the four criteria set out in s 36(2)". Secondly, the Court also relied (at [36]) on the use of the word "further" in s 48A(1) in the phase "further application for a protection visa", which it considered strongly indicated that "the intention was to refer to a further application for a protection visa based on the same criterion relied upon in the earlier unsuccessful application for a protection visa". Thirdly, the Court held (at [37]) that the reference in s 48A(1)(a) to "where the grant of the visa has been refused" (emphasis original) was a reference to the refusal of an application for a protection visa made on the basis of one of the criteria mentioned in one of the four specified paragraphs in s 36(2). 31 Whilst these were the principal considerations addressed by their Honours in SZGIZ 212 FCR 235, they were not the only matters relied on by the Court, which also had regard to some relevant legislative history. 32 We accept that, as the Minister submitted, the Court discerned "different streams of protection visa" represented by the different criteria set out in s 36(2) and held, in effect, that s 48A prevented a repeat protection visa application in the same stream. It is clear that their Honours may well not have reached this conclusion but for the terms of s 48A(2): see SZGIZ 212 FCR 235 at [28]. 33 We also accept that, as the first respondent submitted, SZGIZ does not in terms address the primary question raised by the Minister on this appeal - whether it was permissible for the delegate to consider the first respondent's claims not only by reference to the criterion in s 36(2)(aa), which was the basis for his second valid application, but also by reference to the criterion in s 36(2)(a), which could not have supported a valid application. When one considers the reasoning of their Honours in that case and other relevant provisions of the Migration Act, the answer must be 'no'. 34 In the first place, it must be borne in mind that, whilst s 47 requires the Minister to consider a valid application for a visa, this provision also stipulates that the Minister must not consider an invalid application. Specifically, s 47 provides that: (1) The Minister is to consider a valid application for a visa. (2) The requirement to consider an application for a visa continues until: (a) the application is withdrawn; or (b) the Minister grants or refuses to grant the visa; or (c) the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration). (3) To avoid doubt, the Minister is not to consider an application that is not a valid application. (4) To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa. 35 Section 65(1) complements s 47. It applies when the Minister has considered a valid application, stating: (1) After considering a valid application for a visa, the Minister: (a) if satisfied that: (i) the health criteria for it (if any) have been satisfied; and (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and (iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and (iv) any amount of visa application charge payable in relation to the application has been paid; is to grant a visa; or (b) if not so satisfied, is to refuse to grant the visa. Note: See also section 195A, under which the Minister has a non-compellable power to grant a visa to a person in detention under section 189 (whether or not the person has applied for the visa). Subdivision AA, this Subdivision, Subdivision AF and the regulations do not apply to the Minister's power under that section. ... (Emphasis added.) 36 These two provisions strongly support the proposition that a delegate of the Minister cannot properly consider anything other than that which is the subject of a valid application. This is implicit in ss 47(1) and (3) and in the opening words of s 65 ("[a]fter considering a valid application"). Moreover, the effect of s 48A, in light of SZGIZ 212 FCR 235, is that the reference to "other criteria" in s 65(1)(ii) is a reference to the criteria on which was based the further (valid) application for a protection visa. 37 Having regard to SZGIZ 212 FCR 235, the first respondent's second protection visa application was valid only because it was based on the criterion in s 36(2)(aa), which was a different criterion from the criterion in s 36(2)(a) on which his first protection visa application was based. A second protection visa application based on s 36(2)(a) would clearly have been invalid and the Minister would have been unable to consider it: see s 47(3). It would defeat the evident purpose of s 47(3) to allow that the Minister could consider a criterion in the substantive decision-making processes, which if it was the basis of the visa applicant's application would make that application invalid and could not be considered by the Minister. In this instance, therefore, the delegate ought not to have addressed s 36(2)(a) at all. Nothing turns on this, however, since the Tribunal in this case did "over again" that which the Migration Act required the delegate to do: see Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 502 (Kitto J); cf. Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 at 313-317 (Bowen CJ) and 331-340 (Smithers J). 38 The role of the Tribunal is relevantly set out in ss 414 and 415 of the Migration Act. Section s 414(1) provides, subject to a presently irrelevant exception, that if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision. Section 415 further provides: (1) The Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision. (2) The Tribunal may: (a) affirm the decision; or (b) vary the decision; or (c) if the decision relates to a prescribed matter - remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or (d) set the decision aside and substitute a new decision. (3) If the Tribunal: (a) varies the decision; or (b) sets aside the decision and substitutes a new decision; 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. (4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations. 39 For the purpose of review, the Tribunal can exercise "all the powers and discretions that are conferred by [the Migration] Act on the person who made the decision". Equally, unless the Migration Act provided otherwise, the Tribunal cannot have any powers and discretions that were not conferred on the delegate. The powers conferred on the Tribunal by s 415(2) indicate, moreover, that, in undertaking a review of the delegate's decision, the Tribunal must give "a fresh consideration" to the application that led to the delegate's decision: see Minister for Immigration v Li [2013] HCA 18, 249 CLR 332 at [10]. In so doing, it is incumbent on the Tribunal to identify in its own mind the issues that arise on that application, as indeed the Tribunal did in this case. It is not the case that the Tribunal is required to review on the merits that part of a primary decision that the primary decision-maker had no power to decide and did not bear on the decision that the primary decision-maker was required to make by reference to the criterion on which the application was validly based. Rather, the Tribunal is obliged to decide the correct statutory question, which by reason of s 48A, was in this case whether it was satisfied that the visa applicant met the complementary protection criterion in s 36(2)(a) (or (c)). 40 SZBEL 228 CLR 152 at [33]-[35] did not assist the first respondent's case in this regard because SZBEL was directed to another issue altogether, namely, the interrelationship of procedural fairness requirements and s 425 of the Migration Act. If the delegate addressed the wrong question and irrelevant matters, it does not follow from this or any other case that the Tribunal must do the same. Nor does s 50 of the Migration Act provide an answer because that provision is directed to the information that the Minister need not consider on a further application for a protection visa, assuming such an application can be made, and not the criteria by reference to which the further application can be assessed. 41 It follows that, in our view, Markovic J's reasoning and conclusion in AMA15 [2015] FCA 1424 at [42]-[48], which was consistent with that of Perram J in AOM15 [2015] FCA 1285 at [9] and followed by Katzmann J in SZRAG [2016] FCA 189 at [23], was correct. In this case, therefore the Tribunal did not fall into error as the primary judge found. 42 The first respondent argued, by reference to his notice of contention, that the primary judge erred in finding that the Tribunal was obliged to consider the criterion in s 36(2)(a) only because the delegate had elected to do so; and submitted that, on the contrary, the Tribunal was obliged to consider that criterion because the first respondent had relied on it at the hearing before the Tribunal. In the ordinary case, where s 48A is not engaged, it is no doubt correct to say that a visa applicant may choose to rely on different s 36(2) criteria for a protection visa before the Tribunal than before the delegate: cf. SZGME 168 FCR 487 at [90]. It does not, however, follow from this that the visa applicant may propose a criterion for the Tribunal's consideration that would, if it had been a basis of the protection visa application, have entailed its invalidity. This latter proposition is, so it seems to us, consistent with the reasons of the Court in Applicants S134/2002 211 CLR 441 at [31], where it was stated that the delegate and the Tribunal were required to consider "the application and the criteria which that application had to meet, not the criteria for an application, never made": see also NABE 144 FCR 1 at [62]. The issue in this case is not of course the same as in Applicants S134/2002 211 CLR 441 or NABE 144 FCR 1. This case is not about an application that has never been made, but about criteria for an application that cannot be relied on in a valid application. Nonetheless the principle is much the same. In this case, although the application might be made, it could not be made on the basis of the Refugee Convention criteria. The first respondent's argument did not expressly, nor it seems to us impliedly, involve a challenge to SZGIZ 212 FCR 235. 43 The first respondent's argument on his amended notice of contention was that, providing a second protection visa application was valid in conformity with SZGIZ 212 FCR 235, then the Tribunal was obliged to consider the submissions made by the visa applicant including that he met the s 36(2)(a) criterion. This contention should be rejected for the reasons already stated. If the contention were accepted, then it would in many cases deprive s 48A of practical effect. 44 For the reasons stated, the primary judge was in error in holding that it was open to the Minister's delegate to consider the first respondent's second application for a protection visa by reference to s 36(2)(a) as well as s 36(2)(aa). His Honour was also in error in holding that the Tribunal was obliged to consider the applicability of both criteria since the delegate had elected to do so. Contrary to his Honour, there was no jurisdictional error on the Tribunal's part. 45 For these reasons, the appeal should be allowed and orders 2, 3 and 4 made by his Honour on 18 November 2015 should be set aside. In lieu of these orders, the first respondent's application for judicial review should be dismissed. For the reasons indicated by Mortimer J, subject to any submissions the parties might make, we are provisionally of the view that no order for costs should be made either on the appeal or on the application in the Federal Circuit Court. 46 It is in this eventuality unnecessary and inappropriate to consider the correctness of SZGIZ 212 FCR 235. The Minister made it clear in his notice of appeal, in written submissions and at the hearing that he did not contest the decision of the Full Court in that case if he were successful on his first and second grounds. The first respondent made it clear, so it seems to us, that his argument did not involve a challenge to the correctness of SZGIZ, which on the first respondent's case involved a decision only on the issue of the validity of an application and did not resolve the issues arising in this appeal. 47 It may be that SZGIZ 212 FCR 235 gives rise to difficulties of the kind suggested in the course of argument. It should be borne in mind, however, that statutory constructional choices are often less than clear; and even well-informed minds can reasonably differ on the question of statutory meaning. Whether this Court would have made the same constructional choice as the Full Court did in SZGIZ 212 FCR 235 is of course beside the point. As the Minister recognized, in order to depart from what was decided in that case, we would need to be satisfied that the decision was plainly wrong: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2, 150 FCR 214 at [146]-[150] and SZKCQ v Minister for Immigration and Citizenship and Another [2008] FCAFC 119, 170 FCR 236 at [59]. This standard is, for clear good reason, a high one; and, so far as SZGIZ 212 FCR 235 is concerned, it should be borne in mind that save for an aspect of legislative history relating to the Migration Legislation Amendment Act (No 6) 2001 (Cth) (see [16] above), all the considerations that the Minister submitted in this case were relevant to the construction of s 48A (as it stood prior to 28 May 2014) were in fact considered in SZGIZ. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kenny, Siopis and Besanko.

MORTIMER J: 48 This is an appeal brought by the Minister for Immigration and Border Protection from the orders and judgment of the Federal Circuit Court of Australia made on 18 November 2015. On 28 August 2014, the second respondent (the Administrative Appeals Tribunal) affirmed a decision not to grant the first respondent a Protection (Class XA) visa in relation to the first respondent's claims for complementary protection. The Tribunal determined it had no jurisdiction to review the decision of the delegate about the first respondent's claims for protection under the Refugees Convention. The Federal Circuit Court held the Tribunal did have that jurisdiction and accordingly quashed the Tribunal's decision on the basis it was affected by jurisdictional error. On this appeal, the Minister contends the Tribunal was correct to see its jurisdiction as limited in the way it did. 49 For the reasons that follow, I consider that the appeal should be allowed.

BACKGROUND 50 The background to the appeal is not controversial and can be shortly stated. The first respondent is a citizen of Bangladesh, who arrived in Australia by plane on 10 March 2006 on a subclass 572 (Student) visa. After applying for and obtaining a further visa related to his education (a subclass 572 Vocational Education Sector visa) in 2008, the first respondent then applied for a protection visa on 1 March 2010, claiming that he feared persecution and harm in Bangladesh on the basis of his actual or imputed political opinion. 51 The first respondent claimed that he is a member and supporter of the Bangladesh Nationalist Party (BNP) and that he fears being targeted and harmed by a rival political party (the Awami League). He further claimed that, on 6 June 2005, a "friend and political colleague" of his was shot and killed in his presence by a group of "terrorist boys" who supported the Awami League. He claimed that, after the shooting, the perpetrators threatened him and harassed his parents. He claimed that he would not be afforded state protection and could not relocate to safety. 52 On 11 June 2010, a delegate of the Minister refused to grant the first respondent a protection visa. His application was assessed against s 36(2)(a) of the Act, being the criterion dealing with claims made under the Refugees Convention. At this time, s 36(2)(aa) and the complementary protection regime had not been enacted and could not be applied to his protection visa application. The first respondent sought merits review but on 27 June 2011 the decision under review was affirmed. He then sought judicial review in the Federal Court and the Full Federal Court, but was unsuccessful on both occasions. 53 After the introduction of the complementary protection regime into the Migration Act 1958 (Cth) through s 36(2)(aa), and as a consequence of the Full Federal Court's decision in SZGIZ v Minister for Immigration [2013] FCAFC 71; 212 FCR 235, the first respondent made a second application for a protection visa on 18 March 2014. In the covering letter attached to the visa application, the first respondent's representatives stated that the application "is expressly made in reliance only on s 36(2)(aa)", being the complementary protection provision of s 36 of the Act. The second application was accepted by the Department and considered. On 10 June 2014, a delegate refused the second application for a protection visa. In coming to his decision, and despite what was said in the covering letter, the delegate considered the first respondent's claims for protection under both subss 36(2)(a) and (2)(aa) of the Migration Act.

THE TRIBUNAL'S DECISION 54 The first respondent applied to the Tribunal for review of this decision, and attended a hearing before the Tribunal on 4 August 2014. At the commencement of the hearing, the Tribunal told the first respondent that it would assess his claim against subss 36(2)(aa) and (2)(c), and that it had no jurisdiction to consider his claim on any other basis. Despite the covering letter they had sent to the delegate, the first respondent's representatives ultimately made submissions to the contrary of the position taken in that letter. 55 On 28 August 2014, the Tribunal affirmed the delegate's decision. Putting to one side its consideration under s 36(2)(c), the Tribunal said it only had jurisdiction to consider the first respondent's claims against the complementary protection criterion. It explained its reason in the following terms: The application under review has been lodged as a result of the decision in SZGIZ v MIAC [2013] FCAFC 71, 3 July 2013 ('SZGIZ'). Relevantly, the Full Federal Court confined the effect of s.48A to the making of a further application which duplicated the same essential criterion for the grant of the visa as in the earlier unsuccessful application. For example, the Court found that s.48A did not prevent a non-citizen who had made a valid application on the basis of the refugee criterion in s.36(2)(a) from making a further application on the basis of the complementary protection criterion in s.36(2)(aa) whilst he or she remained in the migration zone. According to SZGIZ, a person who had previously applied for and been refused a protection visa only on the basis of one of the criterion in s.36(2) appeared eligible to lodge a further valid application on the basis of one of the other criterion. However, the Court's reasons suggest that such a person could only have their later claims assessed against those criteria upon which they had not previously made an application. The central concern for the purpose of establishing the s.48A bar, and the extent of the Tribunal's powers on review, appears to be the criterion against which the applicant has previously been assessed. 56 The Tribunal went on to find that, in any event, the first respondent was not a credible witness, and had lied about various facts underlying his core claims for complementary protection. It is not necessary to say anything further about the Tribunal's decision, as its approach to jurisdiction is the subject matter of this appeal.

THE FEDERAL CIRCUIT COURT DECISION 57 On judicial review in the Federal Circuit Court, the first respondent contended that the Tribunal was required to consider afresh his claims for protection based on the criteria in both s 36(2)(a) (Art 1A of the Refugees Convention) and s 36(2)(aa) (complementary protection). He further claimed that the Tribunal failed to consider expert psychological evidence before it or, alternatively, that its findings were irrational in light of this evidence. He contended that the Tribunal had concluded his account of the shooting event was not credible without evidence, and also contended the Tribunal's decision was legally unreasonable. 58 Although it dismissed the first respondent's claims in relation to the second and third grounds of review, the Federal Circuit Court accepted the first respondent's first ground of review. It said: The decisions of this Court relied upon by the Minister correctly establish that if a visa application can only be validly made on the basis of the complementary protection criterion, there is in general no obligation on either the Minister or the Tribunal to consider the refugee criterion. It is, however, a significant further step to assert that there is a jurisdictional limitation on both the Minister and the Tribunal which prevents them from considering the refugee criterion where a valid visa application has been made on the basis of the complementary protection criterion. In my opinion, no support for that proposition can be found in either the Migration Act or the decision of the Full Federal Court in SZGIZ. There is no doubt in this case that the applicant made a valid visa application based upon the complementary protection criterion, which was accepted as valid by both the Minister's delegate and the Tribunal. The delegate was under no duty to consider the refugee criterion but elected to do so. In my opinion, the delegate committed no jurisdictional error in so doing. The delegate having made a valid decision, the Tribunal came under a duty to review that decision in its entirety. It did not do so. The Tribunal considered wrongly that it was under a jurisdictional limitation which prevented it from doing so. That conclusion by the Tribunal was wrong and the Tribunal thus fell into jurisdictional error. 59 This is the key paragraph in which the Minister now submits error can be discerned.

THE SCOPE OF THE APPEAL TO THIS COURT 60 In his notice of appeal to this Court, the Minister raised the following grounds of appeal: 1. The Court below erred in finding that the Second Respondent was required to consider whether the First Respondent satisfied the criterion in s. 36(2)(a) of the Migration Act 1958 (Cth). 2. Further or in the alternative to ground 1, the Court below erred in finding that the Second Respondent was permitted by law to consider whether the First Respondent satisfied the criterion in s. 36(2)(a) of the Migration Act 1958 (Cth). 3. The Court below erred in failing to find that the visa application made by the First Respondent on 18 March 2014 was invalid by reason of the operation of s. 48A of the Migration Act 1958 (Cth). 61 Ground 3 involves this Court determining whether the Full Court's decision in SZGIZ is plainly wrong. Senior counsel for the Minister emphasised that ground 3 was an alternative to grounds 1 and 2. He submitted that, if the Court were persuaded of the errors identified in ground 1 or 2, ground 3 did not arise. He submitted the approach of the delegate and the Federal Circuit Court did not flow from the Full Court's decision in SZGIZ, properly understood. It was only if this Court decided that the approach of the Federal Circuit Court (and, by implication, the delegate) did flow from the Full Court's decision in SZGIZ that the Minister contended this Court should determine that SZGIZ was plainly wrong and should not be followed. 62 If the Court upholds ground 1 or 2 of the notice of appeal, the Minister seeks relief to the effect that, save for a formal order concerning the name of the Tribunal, the Federal Circuit Court's orders be set aside and, in their place, there be an order that the application to the Federal Circuit Court be dismissed with costs. More extensive relief, including a declaration that the first respondent's visa application made on 18 March 2014 was invalid, is sought if the Court upholds ground 3. 63 It became clear during oral argument that the first respondent did not seek to support the decision of the Federal Circuit Court in its entirety. Rather, moving on an amended notice of contention which the Court gave leave to file at the hearing of the appeal, counsel contended that the Federal Circuit Court erred in characterising the delegate's statutory task as including a discretion whether to assess the first respondent's application against the Art 1A criterion in s 36(2)(a), as well as assessing the application against the complementary protection criterion in s 36(2)(aa). Counsel submitted that the correct approach was that, the first respondent having lodged a valid visa application in accordance with the analysis of the Full Court in SZGIZ, the statutory task imposed on the delegate by s 65 of the Migration Act involved applying all available criteria to the claims made by the first respondent, including the criteria in s 36(2)(a). The delegate was then required to determine whether any of them were satisfied and, while the delegate could look at the first decision in relation to s 36(2)(a), the delegate was required to reach her or his own decision on the merits of the first respondent's claims under Art 1A. The Tribunal's task on review under s 414 of the Act was, accordingly, to review the delegate's decision on the basis of all applicable protection visa criteria which, again, included the criterion in s 36(2)(a) as well as in s 36(2)(aa).

RELEVANT LEGISLATIVE PROVISIONS 64 The provisions of the Act change frequently and there have been recent amendments to those aspects of the Act dealing with claims which may engage Australia's international protection obligations. I set out here the applicable provisions at the time of the first respondent's second application for a protection visa on 18 March 2014. Section 4 of the Act sets out the object of the Act and at the relevant time provided: (1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. (2) To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain. (3) To advance its object, this Act requires persons, whether citizens or non-citizens, entering Australia to identify themselves so that the Commonwealth government can know who are the non-citizens so entering. (4) To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act. (5) To advance its object, this Act provides for the taking of unauthorised maritime arrivals from Australia to a regional processing country. 65 Division 3 of Pt 2 of the Act is headed "Visas for non-citizens". At the relevant time, ss 29-31 of the Act, which fall within this Division, provided: 29 Visas (1) Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following: (a) travel to and enter Australia; (b) remain in Australia. Note: A maritime crew visa is generally permission to travel to and enter Australia only by sea (as well as being permission to remain in Australia) (see section 38B). (2) Without limiting subsection (1), a visa to travel to, enter and remain in Australia may be one to: (a) travel to and enter Australia during a prescribed or specified period; and (b) if, and only if, the holder travels to and enters during that period, remain in Australia during a prescribed or specified period or indefinitely. (3) Without limiting subsection (1), a visa to travel to, enter and remain in Australia may be one to: (a) travel to and enter Australia during a prescribed or specified period; and (b) if, and only if, the holder travels to and enters during that period: (i) remain in it during a prescribed or specified period or indefinitely; and (ii) if the holder leaves Australia during a prescribed or specified period, travel to and re-enter it during a prescribed or specified period. (4) Without limiting section 83 (person taken to be included in visa), the regulations may provide for a visa being held by 2 or more persons. 30 Kinds of visas (1) A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a permanent visa, to remain indefinitely. (2) A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a temporary visa, to remain: (a) during a specified period; or (b) until a specified event happens; or (c) while the holder has a specified status. 31 Classes of visas (1) There are to be prescribed classes of visas. (2) As well as the prescribed classes, there are the classes provided for by sections 32, 33, 34, 35, 36, 37, 37A, 38, 38A and 38B. (3) The regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 32, 36, 37, 37A or 38B but not by section 33, 34, 35, 38 or 38A). (4) The regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both. (5) A visa is a visa of a particular class if this Act or the regulations specify that it is a visa of that class. 66 By s 5, "prescribed" is defined to mean: "prescribed by the regulations." 67 At the relevant time, s 36 of the Act dealt with a class of visas called protection visas and set out some of the criteria for the grant of such visas. It provided: 36 Protection visas (1) There is a class of visas to be known as protection visas. Note: See also Subdivision AL. (2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (aa) 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 (b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who: (i) is mentioned in paragraph (a); and (ii) holds a protection visa; or (c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who: (i) is mentioned in paragraph (aa); and (ii) holds a protection visa. (2A) A non-citizen will suffer significant harm if: (a) the non-citizen will be arbitrarily deprived of his or her life; or (b) the death penalty will be carried out on the non-citizen; or (c) the non-citizen will be subjected to torture; or (d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or (e) the non-citizen will be subjected to degrading treatment or punishment. (2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that: (a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or (b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or (c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. Ineligibility for grant of a protection visa (2C) A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if: (a) the Minister has serious reasons for considering that: (i) the non-citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or (ii) the non-citizen committed a serious non-political crime before entering Australia; or (iii) the non-citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or (b) the Minister considers, on reasonable grounds, that: (i) the non-citizen is a danger to Australia's security; or (ii) the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community. Protection obligations (3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national. (4) However, subsection (3) does not apply in relation to a country in respect of which: (a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country. (5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that: (a) the country will return the non-citizen to another country; and (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion. (5A) Also, subsection (3) does not apply in relation to a country if: (a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country. Determining nationality (6) For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country. (7) Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act. 68 Section 45 of the Act sets the requirement for visa applicants to apply for a particular class of visa. At the relevant time, it provided: (1) Subject to this Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class. 69 After a valid application for a visa has been submitted, s 47 of the Act requires the Minister to consider the valid visa application. The relevant version of s 47 was in the following terms: (1) The Minister is to consider a valid application for a visa. (2) The requirement to consider an application for a visa continues until: (a) the application is withdrawn; or (b) the Minister grants or refuses to grant the visa; or (c) the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration). (3) To avoid doubt, the Minister is not to consider an application that is not a valid application. (4) To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa. 70 Sections 48 and 48A of the Act impose, among other things, restrictions on further visa applications by a person in the migration zone who has already applied for a visa and had her or his application refused. At the relevant time, these sections provided: 48 Non-citizen refused a visa or whose visa cancelled may only apply for particular visas (1) A non-citizen in the migration zone who: (a) does not hold a substantive visa; and (b) either: (i) after last entering Australia, was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the application has been finally determined); or (ii) held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas); may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class. (2) For the purposes of this section (which applies only in respect of applications made while a non-citizen is in the migration zone), a non-citizen who: (a) has been removed from the migration zone under section 198; and (b) is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d) or (e); is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a). Note: Paragraphs 42(2A)(d) and (e) cover limited situations where people are returned to Australia despite their removal under section 198. (3) For the purposes of this section (which applies only in respect of applications made while a non-citizen is in the migration zone), a non-citizen who, while holding a bridging visa, leaves and re-enters the migration zone is taken to have been continuously in the migration zone despite that travel. 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 while in the migration zone. (1A) For the purposes of this section, a non-citizen who: (a) has been removed from the migration zone under section 198; and (b) is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d) or (e); is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a). Note: Paragraphs 42(2A)(d) and (e) cover limited situations where people are returned to Australia despite their removal under section 198. (1B) Subject to section 48B, a non-citizen in the migration zone who held a protection visa that was cancelled 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: (aa) an application for a visa, a criterion for which is mentioned in paragraph 36(2)(a), (aa), (b), or (c); and (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. 71 Section 48B confers power on the Minister, in certain circumstances, to determine that the restrictions in s 48A do not apply to an applicant. The relevant version provided: 48B Minister may determine that section 48A does not apply to non-citizen (1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given. (2) The power under subsection (1) may only be exercised by the Minister personally. (3) If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that: (a) sets out the determination; and (b) sets out the reasons for the determination, referring in particular to the Minister's reasons for thinking that his or her actions are in the public interest. (4) A statement under subsection (3) is not to include: (a) the name of the non-citizen; or (b) any information that may identify the non-citizen; or (c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned - the name of that other person or any information that may identify that other person. (5) A statement under subsection (3) is to laid [sic] before each House of the Parliament within 15 sitting days of that House after: (a) if the determination is made between 1 January and 30 June (inclusive) in a year - 1 July in that year; or (b) if the determination is made between 1 July and 31 December (inclusive) in a year - 1 January in the following year. (6) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances. 72 In circumstances where a visa applicant is not prevented from making a second application for a protection visa, s 50 of the Act provides, among other things, that there is no requirement for the Minister to consider information already considered in the first application. At the relevant time, s 50 was in the following terms: 50 Only new information to be considered in later protection visa applications If a non-citizen who has made: (a) an application for a protection visa, where the grant of the visa has been refused and the application has been finally determined; or (b) applications for protection visas, where the grants of the visas have been refused and the applications have been finally determined; makes a further application for a protection visa, the Minister, in considering the further application: (c) is not required to reconsider any information considered in the earlier application or an earlier application; and (d) may have regard to, and take to be correct, any decision that the Minister made about or because of that information. Note: Section 48A prevents repeat applications for protection visas in most circumstances where the applicant is in the migration zone. 73 Section 65 of the Act describes the statutory task in determining whether or not to grant a visa. At the relevant time, it provided: (1) After considering a valid application for a visa, the Minister: (a) if satisfied that: (i) the health criteria for it (if any) have been satisfied; and (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and (iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and (iv) any amount of visa application charge payable in relation to the application has been paid; is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa. Note: See also section 195A, under which the Minister has a non-compellable power to grant a visa to a person in detention under section 189 (whether or not the person has applied for the visa). Subdivision AA, this Subdivision, Subdivision AF and the regulations do not apply to the Minister's power under that section. (2) To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3). 74 In Div 2 of Pt 7 of the Act, which at the relevant time was headed "Review of decisions by the Refugee Review Tribunal", ss 414 and 415 of the Act provided: 414 Refugee Review Tribunal must review decisions (1) Subject to subsection (2), if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision. (2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3). 415 Powers of Refugee Review Tribunal (1) The Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision. (2) The Tribunal may: (a) affirm the decision; or (b) vary the decision; or (c) if the decision relates to a prescribed matter - remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or (d) set the decision aside and substitute a new decision. (3) If the Tribunal: (a) varies the decision; or (b) sets aside the decision and substitutes a new decision; 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. (4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.

CONSIDERATION 75 The Migration Act uses the concept of a visa as the delineation between lawful and unlawful non-citizens: see ss 13 and 14. The latter status has, subject to the operation of other provisions in the Migration Act, serious consequences for the liberty of an individual: see s 189. 76 A visa is a statutory form of executive permission. It grants permission either to travel to and enter, or remain, in Australia (or both): see s 29. There are two broad kinds of visa: temporary and permanent. The latter constitutes permission to remain "indefinitely": see s 30(1). The former constitutes permission to travel to and enter Australia, and remain during a specified period; until a specified event happens; or while the holder has a specified status: see s 30(2). 77 The Act contemplates that there will be different classes of visas, prescribed by regulations made under the Act: see s 31(1), read with the definition of "prescribed" in s 5. Separately, s 31(2) then sets out certain kinds of visa classes for which the Act itself makes provision. Included in this second group are protection visas. At the relevant time, provisions for the class of visas known as protection visas were contained in s 36 of the Act (they are now to be found in s 35A of the current version of the Act). Subject to the Act and regulations (for example, where some persons who enter Australia are automatically granted a visa such as an "absorbed persons" visa in s 34), a non-citizen who wants a visa must apply for a visa of a particular class: see s 45. 78 In other words, a visa application is an application for a particular class of visa. 79 In Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24; 252 CLR 336, French CJ, Crennan and Bell JJ said at [21]-[22]: All classes of visa share a common purpose reflected in the definition of "visa" in s 29(1). They are granted in order to permit non-citizens to travel to and enter and/or remain in Australia. Subject to specific provisions of the Act and the Regulations, a person who wants a visa has to apply for it and has to apply for a visa of a particular class. The Minister is obliged by the Act to consider a valid application for a visa. The Act also provides specifically that the Minister is not to consider an application that is not a valid application. Regulation 2.01 of the Regulations provides in para (a) that, for the purposes of s 31 of the Act, the prescribed classes of visa are: "such classes (other than those created by the Act) as are set out in the respective items in Schedule 1". The Regulations do not purport to redefine the particular classes of visa created by the Act itself. They do, however, define "subclasses" of such visas for the purpose of attaching, as the Act contemplates they may, different sets of criteria conditioning the grant of such visas in different circumstances or for different purposes. (Footnotes omitted.) 80 At [118] and [120], Gageler J said: Sections 33, 34, 35 and 38A each provide for a class of visa that, apart from s 195A, is either granted or taken to be granted by force of the Act if specified circumstances exist. Sections 32, 36, 37, 37A, 38 and 38B each provide for a class of visa that can only be granted by the Minister in the exercise of a power to grant a visa of that class to be found elsewhere in the Act. Sections 32 and 36 each set out a criterion for the grant of a visa of the class for which they provide. Sections 37, 37A, 38 and 38B do not: the criteria for the grant of a visa of the class for which they provide depend on other provisions of the Act or on regulations made under the Act. …. the critical point for present purposes is that any requirement for the Minister to be satisfied of criteria as a precondition to granting visas of the classes for which provision is made by ss 32, 36, 37, 37A, 38 and 38B comes not from the terms of those sections but from the terms of the sections which confer power on the Minister to make the grants. For criminal justice visas of the class for which provision is made by s 38, the power to grant is to be found in s 159, the requirement of which for the Minister's satisfaction of the criteria for a visa of that class binds the Minister in the exercise of the power conferred by s 195A. For bridging visas of the class for which s 37 provides, the power to grant is ordinarily to be found in s 73, in which case satisfaction of criteria for the grant of a visa of that class is required. For visas of the classes for which provision is made in ss 32, 36, 37A or 38B or in regulations made under the Act, the power to grant is ordinarily to be found in s 65, in which case satisfaction of criteria for the grant of visas of those classes is also required. However, for visas of the classes for which provision is made in ss 32, 36, 37, 37A and 38B or in the regulations, the power to grant can also be found in s 195A, the terms of which make clear not only that ss 65 and 73 have no application but that the criterion for making that grant is that "the Minister thinks that it is in the public interest to do so". 81 Plaintiff M79 concerned the scope of the Minister's power under s 195A of the Act to grant a visa of a particular kind (a temporary safe haven visa) where the criteria for that kind of visa were plainly not applicable to the plaintiff. A majority of the Court held s 195A authorised the Minister to make such a grant. Although the circumstances in Plaintiff M79 are not related to the present appeal, I consider the descriptions by the majority judges of the operation of Subdiv A of Div 3 of the Act assists in understanding the importance in the Act of the scheme of classes of visa. 82 Together, it is these provisions (ss 29, 30, 31 and 45) which outline what the Migration Act means by the statutory concept of a visa, including a protection visa. Those provisions are not, in my opinion, primarily concerned with the criteria imposed or prescribed from time to time for the grant of a particular visa. The Act intends the criteria to be ambulatory and susceptible to executive alteration. When an application for a visa is made pursuant to s 46, what the Act is concerned with is an application for a visa of a particular class. Unconstrained by authority, this is how I would have approached the construction question concerning s 48A. However, I am not unconstrained, and the Minister's primary submissions do not challenge the correctness of SZGIZ. 83 There is some difficulty in resolving the question posed in the appeal if the binary approach proposed by the Minister's submissions is adopted. The consequences flowing from the reasoning of the Full Court in SZGIZ are not straightforward. Where necessary to explain my conclusions, I refer below to what I consider to be some of the difficulties with the Full Court's reasoning. However, since the Minister's submission is that this appeal can be disposed of without a reconsideration of SZGIZ, and the first respondent's submission is that broader consequences flow from SZGIZ for the task of the delegate and the Tribunal on review, the approach I propose to adopt is to assume that SZGIZ is correctly decided, and to confine myself to determining what it stands for and how, in light of that conclusion, the parties' competing submissions about errors committed by the Federal Circuit Court should be determined.

The Full Court's Decision in SZGIZ 84 As both parties accepted, SZGIZ was concerned with whether there had been a valid application for the purposes of s 46 of the Migration Act. Like the first respondent in this appeal, the applicant in SZGIZ was a person who had initially made an application for a protection visa under the Migration Act at a time when what is called the 'complementary protection criterion' in s 36 of the Act did not exist. Accordingly, his application was assessed only against the criterion in s 36(2)(a) of the Act. For reasons that are not presently material, some time later the applicant in SZGIZ then sought to lodge another visa application, again seeking a protection visa, but by reference to the criterion in s 36(2)(aa). On the day the second application was lodged, an officer of the Department of Immigration and Citizenship informed the applicant the application was not valid but would be considered as a request for the Minister to exercise his public interest power under s 48B of the Act to permit a further application for a protection visa. Thereupon, the following day, the applicant by his lawyer lodged an application for judicial review of that decision. The then Federal Magistrates' Court accepted the Minister's submissions that the application was not valid because it was prevented by s 48A, and the applicant appealed to a Full Court of this Court. 85 The Full Court's conclusion is expressed at [28] of its reasons: 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. 86 At [29], their Honours explained how they considered the presence of s 48A(2) operated to affect the terms of s 48A(1), and did so by setting out the words their Honours considered needed to be read into the statutory language: When the statutory direction as to the meaning of the term "application for a protection visa" is taken into account in the circumstances of the present case, s 48A(1) must be read (relevantly) as follows: 48A(1) Subject to section 48B, a non-citizen who, while in the migration zone, has made: (a) an application for a visa, a criterion for which is mentioned in paragraph 36(2)(a), (aa), (b) or (c), where the grant of the visa has been refused (whether or not the application has been finally determined); … may not make a further application for a visa, a criterion for which is mentioned in paragraph 36(2)(a), (aa), (b) or (c) while in the migration zone. (Original emphasis.) 87 On this appeal, the Minister contended the words inserted by the Full Court into s 48A(1) were incomplete, and did not reflect the proper construction and operation of s 48A(2). Without, as I understood it, conceding that the reading-in exercise was an appropriate one, the Minister contended that, if the exercise was to be undertaken at all, it needed to reflect all of the words in s 48A(2), which would result in the provision reading as follows (retaining the Full Court's italics and adding the Minister's suggestions in bold): When the statutory direction as to the meaning of the term "application for a protection visa" is taken into account in the circumstances of the present case, s 48A(1) must be read (relevantly) as follows: 48A(1) Subject to section 48B, a non-citizen who, while in the migration zone, has made: (a) an application for a visa, including an application for a visa, a criterion for which is mentioned in paragraph 36(2)(a), (aa), (b) or (c), where the grant of the visa has been refused (whether or not the application has been finally determined); … may not make a further application for a visa, including an application for a visa, a criterion for which is mentioned in paragraph 36(2)(a), (aa), (b) or (c) while in the migration zone. 88 While redrafting or 'reading in' as an aid to making constructional choices can have its dangers, a comparison of the two versions does illustrate the differences between the parties' contentions in SZGIZ, and in this case. 89 The Court noted at [31], and it is the case, that subss 48A(2)(a)-(c) were addressed to earlier operative regimes for refugee protection under the Act, and subs 2(aa) listed the subsections of s 36 containing the current criteria for protection visas granted under the Act as it stood at the time of the Court's decision. Their Honours then said (at [32]): When the statutory direction in s 48A(2) is taken into account, the proper effect to be given to the term "further" is that it refers to an application relying upon the same criterion as an earlier application. (Emphasis added.) 90 The Full Court clearly saw the terms of s 48A(2) as defining exhaustively for the purposes of s 48A(1) what constituted an application for a protection visa, reasoning at [35] that the presence of one of the four stipulated criteria in s 48A(2)(aa) determined whether a visa application is an application for a protection visa for the purposes of s 48A, and noting that each of the four criteria is different from the others. Similarly, where the provisions refer to the refusal of an application for a protection visa, their Honours concluded at [37] this was a reference to refusal based on one of the criteria mentioned in the four specified paragraphs of s 36(2), and confined in that way. 91 Thus, the Court found (at [38]) that the operation of s 48A(1) was confined: to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa (in the sense that both applications raise the same essential criterion for the grant of a protection visa) … 92 Their Honours developed their reasons for that conclusion (at [39]-[50]) by reference to the legislative history of s 48A before and after the introduction of the protection visa criterion in s 36(2)(aa) by the Migration Amendment (Complementary Protection) Act 2011 (Cth). At [51]-[55], their Honours examined the introduction of s 48A. Notably, and this is a matter to which I will return, their Honours were not taken to, and did not have the opportunity to consider, the amendments made in 2001 by the Migration Legislation Amendment Act (No 6) 2001 (Cth) to overcome the effect of the Full Federal Court's decision in Dranichnikov v Minister for Immigration and Multicultural Affairs [2001] FCA 769; 109 FCR 397. If they had been taken to those amendments and the extrinsic material explaining them, in my opinion, it may have affected their Honours' conclusions. 93 The Full Court also placed some reliance on the principles of statutory construction flowing from the assumption by Australia of international obligations, as set out in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 at 287 (Mason CJ and Deane J) and Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144 at [247], and the authorities to which Kiefel J there refers. The Court noted (at [62]) that the construction of s 48A which they adopted by reference to considerations apart from Australia's international obligations was further supported by the fact that construction was consistent with Australia's relevant international obligations. At [63]-[73], for the several reasons there enumerated, the Court rejected the Minister's contention that the use of the word "includes" in s 48A(2) indicated an intention that the list in s 48A(2) was expansive and non-exhaustive. 94 Accordingly, the Court granted a declaration that the application for a protection visa lodged by the applicant on 10 October 2012 was not invalid under s 48A of the Act and ordered that the respondent consider and determine that application according to law. 95 As I have noted, in his principal submissions, the Minister accepted the correctness of SZGIZ, and his submissions took as their starting point that the first respondent to this appeal had lodged a valid visa application, to which the duty in s 47 of the Act (to consider a valid visa application) attached. That is the fact which, as counsel for the first respondent submitted, distinguishes this case from SZGIZ. 96 Therefore, the area of debate on this appeal revolves around the answer to the following question: where an applicant lodges a second protection visa application in the circumstances contemplated by the Full Court in SZGIZ, what is the scope of the statutory task to be performed, first by a delegate under s 65 of the Act, and second by the Tribunal under s 414 of the Act on any review of the delegate's decision? 97 In my opinion, the scope of that task is limited to consideration of the criterion in s 36(2)(aa). Before I turn to explain why that is so, it is important to consider some of the legislative history of s 48A(1) which was not drawn to the attention of the Full Court in SZGIZ. This legislative history informs the view I have taken about the scope of the task under s 65. 98 At the time of the Full Court's decision in Dranichnikov, s 48A read as follows: (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. 99 Two differences may be observed from the version of s 48A with which this appeal is concerned. First, there are no provisions dealing with spouses and families of an applicant. That is the issue on which Dranichnikov turned. Second, subs (2) only concerns historical categories of applications for protection (including those before the current regime was introduced with effect from 1 September 1994 by the Migration Reform Act 1992 (Cth)). This second feature, as the Minister submitted, does tend to suggest that the word "includes" in subs (2) is intended to be expansive rather than exhaustive, as subs (2) does not refer at all to protection visa applications made under the version of the Migration Act in existence at the time s 48A was enacted. 100 In Dranichnikov, the appellant's husband had lodged an "Application for a Protection Visa (866)" in the prescribed form in April 1997, on the ground that he was a refugee to whom Australia had protection obligations under the Refugees Convention. The appellant and her nine year old daughter were named in the husband's application as members of his family unit. The husband's application was refused and subsequently the appellant attempted to lodge a further "Application for a Protection Visa (866)" in the prescribed form making a claim to be entitled to a protection visa in her own right as a refugee, as defined in the Refugees Convention. 101 The Full Court held that s 48A, in the terms I have extracted at [98] above, did not prevent the appellant from lodging her own application, and the Department was in error to consider it invalid. The Full Court held (at [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. 102 The purpose of the amendments to s 48A contained in the Migration Legislation Amendment Act (No 6) 2001 (Cth) was to preclude the kind of application the Full Court had found valid. In the Minister's Second Reading Speech (Australia, House of Representatives, Debates (2001) at p 30423-30424), the Minister said: As well, the act [sic] will be amended to make clear that protection visas can be granted to spouses and dependants in Australia of a person found to be owed protection obligations even though the spouse and dependants did not have personal claims for protection. However, consequential changes are then made by the legislation to make it clear that provisions in the Migration Act that bar repeat protection visa applications relate also to a person who has not raised protection claims in their first protection visa application. Without this provision, dependants of an unsuccessful protection visa applicant who had chosen not to advance protection claims when given the opportunity to do so could apply again making such claims. Potentially, family members could apply for protection with each member taking turns to be the one advancing protection claims - in other words, it can be used as a device to ensure that family groups remain in Australia by pursuing application after application. This could prolong a family's stay in Australia for years as each applicant in turn applies and pursues appeals. The bill will extend the bar on repeat applications to ensure that all family members included in a protection visa application will be barred from making another application for a protection visa. 103 The Explanatory Memorandum to the Migration Legislation Amendment Bill (No 6) 2001 at [15] stated: These changes make clear that the existing section 48A bar on making further protection visa applications applies to unsuccessful protection visa applicants where the application relied on the grounds that the applicant was the spouse or dependant of a person who is owed protection obligations under the Refugees Convention. This change is necessary to prevent misuse of the protection visa process by family groups wishing to prolong their stay in Australia by lodging protection applications serially, each member taking turns to advance claims for protection while the others apply as family members. 104 The example of husband and wife applicants given by the Full Court in SZGIZ at [43] is not in conformity with the express purpose of these amendments, or the text of s 48A thereafter, including at the time SZGIZ was determined. As the Minister submitted, several decisions of this Court (and several in the then Federal Magistrates' Court) were decided on the basis the amendments were effective in achieving that purpose: see for example SZRKF v Minister for Immigration and Citizenship [2013] FCA 181 at [24]-[32]; SZNFS v Minister for Immigration and Citizenship [2009] FCA 919 at [24]. 105 This legislative history suggests, in my respectful opinion, that the Parliament's intention in s 48A, by the use of the phrase "application for a protection visa" in s 48A(1), is to prevent any further application for the class of visa known in the Act as a protection visa, by any person included in the former application. That intention is, in my respectful opinion, also clear from the use of the word "or" in what I see as the inclusive but not exhaustive list in s 48A(2)(aa). It is also consistent with the general scheme of the Migration Act, which I have set out above. 106 Nevertheless, for the purposes of determining the first two grounds of the Minister's appeal, I do not need to reach any conclusions about whether SZGIZ is "plainly wrong" and should not be followed. Other members of the Court have also found that question unnecessary to decide. Instead, the matters I have set out at [97]-[105] confirm my opinion that the approach taken by the Federal Circuit Court in the present case was incorrect.

The limited scope of the task in a SZGIZ-type application 107 It is has been said many times, and was not disputed on this appeal, that s 65 imposes a duty on the Minister, a delegate of the Minister and on the Tribunal on any review, to form a state of satisfaction about the matters in s 65(1) and, if satisfied of the applicable matters, to grant a visa, and if not, to refuse to grant a visa. The formation of that state of satisfaction has been characterised as a jurisdictional fact, and subject to judicial review: see Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [131], (Gummow J) (and the cases there cited); Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [20]-[31], [37]-[38] (Gummow A-CJ and Kiefel J); Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; 255 CLR 179 at [34]. 108 In circumstances where s 48A(1) is construed as not preventing a further protection visa application relying on a different criterion in s 36(2) than the one relied on in a former visa application, then the validity of that further visa application is wholly dependent on the existence of a protection visa criterion not previously considered in the performance of the duty under s 65. A further protection visa application which relies on the same criterion as that relied on in an earlier application is not a valid application, and this is what the Full Court in SZGIZ held at [32], which I have extracted at [89] above. The duty in s 65 has already been performed in relation to an application for a visa based on that criterion. 109 The effect of the Full Court's decision in SZGIZ, on the assumption it is correct, is that the further visa application must be considered on a limited basis. The formation of a state of satisfaction for the purposes of s 65 is limited, relevantly (and noting that other criteria must be met for grant) to the protection visa criterion not previously considered. Section 48A(1) as construed by the Full Court in SZGIZ, read with both s 47(1) and s 47(3) (the latter prohibiting consideration, relevantly, of a protection visa application that is not valid) prevents the statutory task under s 65 being performed in relation to the protection criterion in s 36(2)(a), which has already been considered and determined. 110 To approach the operation of these provisions in any other way would in my opinion frustrate the legislative intention apparent in s 48A(1) and deprive s 48A(1) of any real effect. I do not consider the Full Court in SZGIZ intended such a result: rather, their Honours saw the legislative scheme as extending to a person whose claims were, under s 36(2), capable of being assessed for the first time against a separate protection criterion. Especially where that criterion was not formerly available to that person at the time she or he made the first protection visa application. Their Honours did not endorse a view of the legislative scheme that would enable a person to re-agitate a claim for protection under the Refugees Convention, relying on s 36(2)(a), when that claim had already been considered and determined. 111 The limited basis of the valid application in these circumstances informs (and determines) the content of the "other criteria" which must be considered under s 65(1)(a)(ii). This is the point made by Markovic J in AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424 at [44]. 112 Thus, the scope of the duty in s 65 is circumscribed by the limited scope of the valid application under s 46, read with s 48A(1). 113 The consequence is that for the delegate to consider the first respondent's further application for a protection visa against the criterion in s 36(2)(a) was to exceed the jurisdiction conferred on the delegate by s 65 of the Act. To put it another way, the statutory task of the delegate under s 65 did not include consideration of the first respondent's further application for a protection visa against the criterion in s 36(2)(a) of the Act. Insofar as the Federal Circuit Court concluded the delegate had such jurisdiction (whether as a matter of election, discretion or however it might be described), that conclusion was incorrect. 114 When the matter came before the Tribunal, the effect of the terms of ss 414 and 415 of the Act was that the Tribunal was required to review the decision of the delegate, in the manner described by French CJ in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [10]. However, like the delegate, its duty under s 65 was circumscribed by the limited validity of the further protection visa application. For it too, to consider the first respondent's further application for a protection visa against the criterion in s 36(2)(a) would have been to exceed the jurisdiction conferred on it in the circumstances by s 65 of the Act. To put it another way, the statutory task of the Tribunal under s 65 did not include any review of the delegate's assessment of the first respondent's further application for a protection visa against the criterion in s 36(2)(a) of the Act. The Tribunal was correct in the way it approached the limits of its jurisdiction, and the Federal Circuit Court was incorrect to set aside its decision.

Conclusion 115 For those reasons, grounds 1 and 2 of the Minister's appeal should succeed. There should be orders setting aside the decision of the Federal Circuit Court, and in their place, ordering that the application for judicial review be dismissed. 116 The legal position before the Federal Circuit Court was unclear, and it is by no means obvious what the answer to the dilemma faced by the delegate and the Tribunal was in these circumstances. In my respectful opinion, the analysis undertaken by the Full Court in SZGIZ and the construction placed on s 48A(1) is not easy to reconcile with the operation of ss 47 and 65. There are some qualifications which need to be read into those provisions, as I have set out, in order to reconcile the purpose of s 48A(1) and the legislative intention as set out by the Full Court in SZGIZ. 117 The Minister did not seek a reconsideration of SZGIZ if the Court was persuaded on ground 1 or 2. That being the case, I do not consider it appropriate to determine ground 3. 118 In the unusual circumstances of this case, due to the uncertainty of the legal position, I do not consider it is appropriate that the first respondent should bear the Minister's costs of the appeal, nor the costs in the Federal Circuit Court. I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.

Migration Amendment Act 2014(Cth)

Migration Amendment (Complementary Protection) Act 2011(Cth)

Migration Reform Act 1992(Cth)

d Multicultural and Indigenous Affairs and Another [2006] HCA 63; 228 CLR 152 SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235 SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91; 168 FCR 487 SZKCQ v Minister for Immigration and Citizenship and Another [2008] FCAFC 119; 170 FCR 236 SZNFS v Minister for Immigration and Citizenship [2009] FCA 919 SZOVB v Minister for Immigration and Citizenship [2011] FCA 1462; 125 ALD 38 SZRAG v Minister for Immigration and Border Protection [2016] FCA 189 SZRKF v Minister for Immigration and Citizenship [2013] FCA 181 SZVCH v Minster for Immigration & Anor [2015] FCCA 2950 YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395

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