Soondur v Minister for Immigration & Multicultural Affairs

Federal Court of Australia (Full Court)|2002-10-25|Before: Goldberg JJ, Gray J

introduction 52 This is an appeal against a decision of a judge of this Court, given on 28 February 2001, dismissing an application, purportedly made under s 486 of the Migration Act 1958 (Cth) ("the Act") and s 8 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"), as incompetent, the respondent having filed (on 10 January 2001) a notice of objection to competency. As events have transpired, only the second appellant prosecuted the appeal. The appeal involves consideration of the rights, if any, of a person who joins in an application for a protection visa on the basis of being a member of a family unit of an applicant, and not as a refugee (i.e. does not submit her own claims to be a refugee) where the application is not a valid application.

factual and procedural background 53 The following summary of the factual and procedural background is taken almost exclusively from the reasons for judgment of the learned primary judge. 54 The first appellant ("Ms Soondur") is a citizen of Fiji. She arrived in Australia on 30 November 1989 with her then husband, Mr Yushrazsingh Soondur, and their daughter Sanjana (the second appellant), on a visitor's visa which was valid for three months from arrival. On 9 February 1990, the family applied to remain permanently in Australia. Mr Soondur was the principal applicant. The application was for a "Permanent Entry Permit After Entry". On 12 February 1992, a delegate of the respondent wrote to Ms Soondur advising her that the application had been refused on 3 February 1992 and that she was an "illegal entrant" and had been since 9 February 1990 because her entry permit had allowed her to remain in Australia only until that date. As the primary judge pointed out, the evidence was that the entry permit expired three months after 30 November 1989, but nothing turned on that discrepancy. 55 On 3 April 1992, Ms Soondur, through her solicitors, lodged an "Application for Refugee Status in Australia" with the Department of Immigration, Local Government and Ethnic Affairs ("the Department") - later the Department of Immigration & Multicultural Affairs. Included in her application were her husband, her daughter Sanjana and a second daughter Sheena (the third appellant), who had been born in Australia on 4 November 1991. Such inclusions were respectively indicated by the answer to a question (in the then current form) enquiring whether these family members were included in the application and a mark (in each case) placed in the "yes" box. 56 On 16 July 1993, Ms Soondur's marriage to Mr Soondur was dissolved. 57 On or about 28 February 1996, a delegate of the respondent refused Ms Soondur's application for refugee status. On 15 March 1996, she lodged with the Refugee Review Tribunal ("the Tribunal") an application for review of the delegate's decision. On 29 August 1997, the Tribunal affirmed the delegate's decision to refuse that application. 58 Ms Soondur did not seek judicial review of the Tribunal's decision. On 8 September 1997, her solicitors wrote to the respondent requesting him to exercise his discretion under s 417 of the Act to substitute for the Tribunal's decision a decision more favourable to her. On or about 25 March 1998 or 2 April 1998 (both dates appear in the evidence), the respondent notified Ms Soondur that he declined to exercise his discretion in her favour. 59 On 15 July 1999, Ms Soondur lodged an application for a General Residence Class Visa, Spouse Subclass ("spouse visa") which included her two daughters. At that time neither she nor they held a visa (her then last Bridging Visa was a Bridging Visa 'E' which had been granted on 1 April 1998 and expired on 1 June 1998). Ms Soondur was nominated for the spouse visa by Mr George Kishor Sahai. She claimed, with his support, that she and he had been de facto spouses since 1995. 60 The application for the spouse visa contained submissions dated 13 July 1999 on Ms Soondur's behalf by migration agents, Tahmina & Associates. The address of that firm on its letterhead was "36 Lillian St, Berala, NSW 2141". That address was also the address to which Ms Soondur indicated, in her application, she wanted correspondence to be sent. 61 On 10 August 1999, the respondent's Department wrote to Ms Soondur "c/- Tahmina & Associates, 36 Lillian Street Berala NSW 2141" notifying her that it had been determined that the spouse visa application was invalid. The reason given was that Ms Soondur was not the holder of a substantive visa and had had an application for a visa refused since last entering Australia. Reliance was placed on ss 46 and 48 of the Act. As his Honour pointed out, the relevant provisions of those sections were to the effect that an application for a visa was valid only if it was not prevented by s 48 (s 46), and that a non-citizen in the migration zone who did not hold a substantive visa, and after last entering Australia had been refused a visa for which the non-citizen had applied, might not apply for a visa of any class other than a class specified in the Regulations (s 48). A spouse visa was not so specified. On that basis, Ms Soondur's application for the spouse visa was invalid. 62 Ms Soondur alleged that the Department's letter dated 10 August 1999 was not received by her or by Tahmina & Associates. She has filed an affidavit, sworn by Tahmina Rahim, in support of that allegation. 63 On 17 March 2000, an application was lodged with the Department for a protection visa under Ms Soondur's maiden name, "Prem Lata Prasad". That application included her two daughters, Sanjana and Sheena, as family members. They were included by having their personal particulars entered in that section of the then current application form which was headed "Details of persons included in this application". Ms Soondur asserted that she did not sign that application. 64 On 23 March 2000, the Department wrote to Ms Soondur advising her that she had not been entitled to make that application. Ms Soondur asserted that she did not receive that letter. 65 As Ms Soondur had previously unsuccessfully applied for refugee status, s 48A of the Act disentitled her from making the application for a protection visa unless the respondent were to give a written notice under s 48B of the Act. Accordingly, on 11 April 2000, her application was referred, as a matter of administrative process, for consideration against the Minister's Guidelines relating to requests for Ministerial intervention under s 48B. On 12 April 2000, the application was assessed by a Departmental Case Manager as not meeting the Guidelines. On 13 April 2000, the Department wrote to Ms Soondur informing her that she had been disentitled to make the application for a protection visa, that her request for the exercise of the Minister's power under s 48B had been assessed against the Minister's Guidelines, that her request did not meet the Guidelines, and that her case would not be referred to the Minister for consideration under s 48B. 66 On 18 October 2000, Ms Soondur and her children were taken into immigration detention under s 189(1) of the Act. 67 On 19 December 2000, Ms Soondur lodged a further application for a protection visa with the Department. Sanjana and Sheena each completed a part of the application, marked with a large D, which was headed as follows: "D Application for a member of the family unit This part is for a member of the family unit who does NOT have their own claims to be a refugee, but is included in this application If you DO have your own claims to be a refugee, complete a Part C instead." (Only Ms Soondur completed Part C). 68 The next day, 20 December 2000, the Department wrote to Ms Soondur informing her that the application had not been accepted as a valid application and would be referred for consideration of whether the Minister's discretion under s 48B of the Act might be exercised. On 22 December 2000, a Case Manager found that this further application for a protection visa did not meet the Minister's Guidelines in relation to s 48B. On the same day, 22 December 2000, the Department wrote to Ms Soondur advising her, in relation to this further application for a protection visa, in terms similar to the terms of its letter to her dated 13 April 2000. 69 On 24 January 2001, Ms Soondur and her children were granted bridging visas and released from immigration detention.

the statutory framework 70 Section 31 of the Act relevantly provides that: · there are to be prescribed classes of visas; · as well as the prescribed classes of visas, there are the classes provided for by (among other sections) s 36; · the regulations may prescribe criteria for visas of a class provided for by (again among other sections) s 36; and · a visa is a visa of a particular class if the Act or the regulations specify that it is a visa of that class. 71 Regulation 1126 (in Schedule 1) sets out the specific ways in which a non-citizen is to apply for a visa of the class described as Protection (Class AZ). Regulation 1126(3)(c) relevantly provides that an application by a person claiming to be a member of the family unit of an applicant for a Protection (Class AZ) visa may be made at the same time and place as, and may be combined with, the application of that person. Regulation 866 of the Regulations sets out the primary criteria which all applicants for a protection visa must satisfy at the time of application. Regulation 866.21 is in the following terms: "866.21 Criteria to be satisfied at time of application 866.211 The applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and: (a) makes specific claims under the Refugees Convention; or (b) claims to be a member of the same family unit as a person who: (i) has made specific claims under the Refugees Convention; and (ii) is an applicant for a Protection (Class AZ) visa." 72 Section 36 of the Act provides: "36(1) There is a class of visas to be known as protection visas. (2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." "46(1)… an application for a visa is valid if, and only if: ... (d) it is not prevented by section 48 (visa refused or cancelled earlier), 48A (protection visa), 91E (CPA and safe third countries), 91K (temporary safe haven visa), 161 (criminal justice), 195 (detainees) or 501E (visa refused or cancelled on character grounds);" (my emphasis) … "47(1) The Minister is to consider a valid application for a visa. (2) … (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." (my emphasis) "48A(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." (except for "application for a protection visa", my emphasis) "48B(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. … (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." (my emphasis) "50. 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."

the application at first instance 73 In her application for an order of review, filed on 9 January 2001, Ms Soondur sought review of what she described as two decisions. The application comprised two parts, Part A and Part B, each of which sought review of a separate administrative decision. 74 Part A of the application sought to review the respondent's decision to refuse to accept Ms Soondur's application for a protection visa "under Section 50 of the Migration Act 1958". This decision was identified as being the one which had been notified to her by letter dated 22 December 2000. 75 Part B of the application sought to review the respondent's decision to detain Ms Soondur and her two children. 76 The application was later amended, by leave, to add the second and third appellants as applicants. It is not clear whether the second and third appellants sought review of both decisions. 77 It is not necessary to consider Part B of the application any further because none of the appellants press the matter in the appeal. 78 His Honour upheld a notice of objection to the competency of Part A of the application on the basis that since her arrival in Australia on 30 November 1989, Ms Soondur had applied (in April 1992) for refugee status and the grant of refugee status had been refused on or about 28 February 1996. His Honour found that Ms Soondur's application was not a valid application due to the provisions of s 46(1)(d) and s 48A of the Act. His Honour further found that the Act operated unilaterally to require the respondent not to consider Ms Soondur's application - see s 47(3). His Honour pointed out that s 48B empowers the Minister to "suspend" for seven days the disentitling provision contained in s 48A. If the Minister does so, a further application for a protection visa, made during that period, would attract the operation of s 50. But that, as his Honour also pointed out, was not this case. There was thus no decision under s 50 at all and therefore no relevant decision relating to a visa within s 475(1)(c) of the Act, and, further, no relevant decision of an administrative character made under an enactment within the definition of a "decision to which this Act applies" in s 3(1) of the ADJR Act.

the appeal 79 Since the hearing at first instance, the third appellant (Ms Soondur's daughter Sheena who was born in Australia) has been granted Australian citizenship. At the hearing she sought and was granted leave (by consent) to discontinue her appeal with no costs order being made against her. 80 Ms Soondur appeared at the appeal without legal representation and declined to make any submissions. 81 In relation to those of the grounds of appeal set out in the notice of appeal, as filed, which relate to Ms Soondur, I would dismiss her appeal for the reasons given by the primary judge. The remaining issue is whether the primary judge erred in law in dismissing the application so far as the second appellant was concerned. 82 At the hearing of the appeal, counsel for the second appellant sought leave to amend the notice of appeal to raise as the second appellant's sole grounds of appeal the following: "(A) His Honour erred in holding that section 48A operated unilaterally to require the Minister not to consider the second appellant's application for a protection visa. (B) Alternatively, his Honour erred in failing to consider the application made by the second appellant." 83 We reserved the question of whether the second appellant should have leave to amend her notice of appeal (and, if necessary her application at first instance) on the basis that we would hear her arguments proposed in the appeal if leave were granted. 84 The second appellant's point is a short one. She says that the primary judge did not separately consider her position, but disposed of the application on the basis that her mother had made an application for refugee status in Australia on 3 April 1992 and was thereby prohibited from making the application for a protection visa on 19 December 2000. The second appellant contends that although she was named as a family member in the earlier application, she has never been an applicant for a protection visa. The second appellant relied, for that proposition, on a decision of the Full Court of this Court in Dranichnikov v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 397 at [16] where the Court said this: "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." 85 The Full Court went on to consider the Migration Regulations applicable at the time of the original application relevant in that matter and confirmed that the view expressed above (as a prima facie one) was correct. 86 In written submissions, Mr P Braham, counsel for the second appellant pointed out that s 48A had been amended since the decision in Dranichnikov to include under the definition of "application for a protection visa" an application for a visa, a criterion for which is that the applicant is a non-citizen in Australia who is the spouse or dependent of a non-citizen in Australia. But, as Mr Braham also pointed out, that amendment did not apply to the present application. His Honour had erred in law, so it was put, by failing to distinguish between the different positions of Ms Soondur and her daughter the second appellant. The same mistake was also said to have been made initially by the respondent. 87 The respondent submitted that as neither the second nor the third appellant claimed to have their own claims to be refugees, and both had completed Part D of the application form lodged on 19 December 2000 (the part provided for a member of the family unit who does not have their own claims to be a refugee) as opposed to Part C (for an applicant who wishes to submit their own claims to be a refugee), the application made by Ms Soondur on 19 December 2000 was not an application in its own right made by the second appellant. In a situation where the principal applicant's application for a protection visa was not a valid application because of s 48A of the Act, so the respondent argued, no valid application for a protection visa could have been made by a person included in that application without that person having also completed Part C of the application form and having provided information in support of his or her claims - Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435; Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486. 88 In reply to that submission the second appellant says that she signed the 19 December 2000 application form which was headed "Application for a Protection Visa" and completed Part D which was similarly headed. She says that the respondent has not yet even begun to process the application and it is still open to her to submit further material in support of it, including information which would support her entitlement to protection under the Convention.

my reasoning 89 In my view the appeal turns upon the following questions: · did the second appellant, by signing Part D of her mother's application (lodged with the Department on 19 December 2000), make an application which the respondent was obliged to consider?; · if so, did the respondent fail to consider the second appellant's application and thereby fall into reviewable error?; and · if he did, should the application be remitted to the respondent for consideration? 90 Section 36(1) creates a class of visas known as protection visas. The Act provides one criterion for such a visa in s 36(2) and Regulation 866.21 (as authorised by s 31) specifies other criteria. Regulation 866.21 requires, first, that an applicant for a protection visa claims to be a person to whom Australia has protection obligations under the Refugees Convention. That person must also (i.e. in addition to claiming to be a person to whom Australia has protection obligations under the Convention) either make specific claims under the Convention or claim to be a member of the same family unit of a person who has made such claims and is an applicant for a Protection (Class AZ) visa. 91 In my opinion, the combination of the fact that the second appellant signed Part D of the application form and the fact that it was lodged with the respondent's Department (on 19 December 2000) had the result that the second appellant applied for a protection visa. She thus invoked Australia's protection obligations, if any, to her under the Convention. She did so on the basis that she did not have her own claims to be a refugee, but was to be included in her mother's application. I disagree, respectfully, with Gray J's view that there remains any factual issue about that point. In my opinion, as the second appellant did not complete Part C of the application form she made no claims of her own to be a refugee, but nevertheless she made an application for a protection visa. By completing Part D but not Part C, the second appellant was in the same situation as Mrs Dranichnikov was when she made her first application - see [8] of the Full Court's reasoning. The second appellant is, in my view, to be treated as having applied for a visa on 19 December 2000 on the basis of being a member of Ms Soondur's family unit rather than claiming refugee status in her own right. 92 Ms Soondur's application was, by force of s 46 (when read with s 48A) of the Act not a valid application. In my view, in those circumstances, the second appellant's application for a protection visa was also invalid because it depended entirely upon Ms Soondur's application. It depended entirely upon Ms Soondur's application because a criterion which the second appellant had to satisfy as at 19 December 2000 was that her mother, Ms Soondur, was the applicant for a protection visa - see regulation 866.211(b)(ii). 93 I think that the primary judge was correct in upholding the respondent's objection to the competency of the application, although his Honour did not separately consider the position of the second appellant. It should be noted that his Honour's decision preceded, by some four months, the Full Court's decision in Dranichnikov. 94 I would distinguish Dranichnikov from the present case. In Dranichnikov the appellant had previously been included as a member of her husband's family unit. After her husband's application was rejected she lodged an application in her own right. The Full Court held that the appellant had not made an application under s 36 by being included in her husband's application. 95 I disagree, with respect, with the reasoning of the Full Court in Dranichnikov, but it is not necessary to decide whether it should be followed. That is because the whole basis of the second appellant's case is that on 19 December 2000 she had made an application for a protection visa. As I see it, there is a flaw in the Full Court's reasoning in Dranichnikov where, at [12] their Honours stated: "Thus the criterion in s 36(2) can only be satisfied by a person who has been determined to be a refugee as defined in Art 1A of the Refugees Convention." (My emphasis) 96 That is not how I read s 36(2). Section 36(2) simply specifies as one of the criteria ("includes") for a protection visa, a requirement that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention. It does not say that such a person has to have been determined to be a refugee. 97 The term "protection obligations" is not defined in the Act and is not a term used in the Convention. Accordingly, in my view, there is nothing in the Act which requires s 36(2) to be read restrictively by confining the "protection obligations" referred to in that subsection to "protection obligations [to a person] as a refugee", as the Full Court did in Dranichnikov (see also para [16] of their Honours reasons set out above). That is, there seems to be no logical reason for not extending the meaning of the expression "protection obligations" under the Convention to include protection obligations to, for example, the children of a refugee. The children do not have to establish the same likelihood of persecution as may be visited upon, say, their father or mother. The scheme of the Act and the Regulations is such that it makes provision for the grant of protection visas to such family members even where they make no claims to be refugees. But it is not necessary to the determination of this appeal to decide whether the reasoning in Dranichnikov was thus flawed (as I think, with respect, it was). That is because, in my view, the second appellant's application on 19 December 2000 for a protection visa was doomed to failure from the outset. 98 When persons complete Part D of an application for a protection visa, they are, in my opinion, quite clearly invoking a protection obligation (on Australia's part) to them under the Convention, as members of the family of a refugee. But, at the risk of being repetitious, they are not claiming refugee status for themselves. 99 The second appellant's application thus fell to be considered under clause 866.211(b). Clause 866.211(b)(ii) was not satisfied (and could never have been satisfied) because Ms Soondur's application was, by force of the Act, not a valid application. 100 I think that it is sufficiently clear from the respondent's letter dated 20 December 2000, addressed to all three of the appellants, that his delegate had decided not to consider the application because Ms Soondur had made a previous application for a protection visa. That letter advised the appellants of the possibility that the Minister might exercise his discretion to allow a further application to be made if it were considered to be in the public interest to do so. 101 I think that it is also reasonably clear from that evidence (and I so infer for the purposes of this appeal) that the respondent's delegate did not consider separately the second appellant's application. I do not consider that the respondent's delegate fell into reviewable error by failing to do so. That is because the second appellant did not at the time of the application (19 December 2000) satisfy the criterion set out in Reg 866.211(b)(ii). But even if he were obliged to consider the second appellant's application separately (and fell into reviewable error) in failing to do so, I do not think that the second appellant should be granted any relief. That is because, in my opinion, the second appellant's application was, as I have said, doomed to failure because at the time of application she did not satisfy the criterion set out in clause 866.211(b)(ii). In my view, Ms Soondur was not an applicant for a Protection (Class AZ) Visa. She could not have been such an applicant at that time because of the combined effect of ss 46 and 48A of the Act. 102 In view of the statutory command of s 48A(1), I do not think that Ms Soondur became an applicant by completing and lodging the form of application on 19 December 2000. Parliament has prohibited her from obtaining that status. 103 Parliament has provided a mechanism, through s 48B, whereby the respondent may, if he thinks that it is in the public interest to do so, by giving written notice to a particular non-citizen in Ms Soondur's situation, determine that s 48A does not apply to prevent an application being made by such a non-citizen in a period specified in that notice. It is important, in my view, to appreciate that s 48B speaks about what may happen in future. If that person lodges a further application within that period, then he or she would be an applicant within the meaning of cl 866.211(b)(ii). But, as the primary judge pointed out, that is not this case. 104 For those reasons I consider that it would have been and remains futile for the application to be remitted to the respondent for consideration. For the same reason, it would be futile to allow the appeal. 105 Counsel for the second appellant submitted that such a course would not be futile because the applicant should have an opportunity to satisfy the alternative criterion provided by clause 866.211(a) by making specific claims under the Refugees Convention. That submission ignores the requirement of that clause that the criteria (the making of specific claims under the Refugees Convention) be satisfied at the time of the application. In my opinion, this is not a case where the provision of additional information could change an originally hopeless application into one with any prospect of success. 106 It is possible, as Gray J points out, that Ms Soondur might make a further application for the exercise of the Minister's power pursuant to s 48B of the Migration Act. If she were successful in that endeavour she would need to lodge a further application for a protection visa within the seven day period limited by s 48B(1). The second appellant might join in that further application in her own right (assuming Dranichnikov to be correctly decided) or as a member of the same family unit, or both. I respectfully agree with Gray J's view that an applicant may pursue both bases for a protection visa. But, in my respectful opinion, that is not what the second appellant has done in this matter. 107 Since preparing the above reasons in draft form, I have had the advantage of reading the reasons for judgment of a Full Court of this Court in NACN of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 299. In that case the Full Court dismissed an appeal from a decision in relation to the operation of s 47(3) of the Act and the refusal of a delegate of the respondent to consider an application because the applicant could not satisfy a criterion stipulated in the Migration Regulations. Their Honours said this, at [21]: "In our view, the primary Judge was plainly correct in holding that the appellant could not, under any circumstances, satisfy the requirements of cl 832.211(3) of the Migration Regulations. It follows that his Honour was also correct in holding that the application for a visa was invalid (s 46(1)(d)) and that the Minister was not to consider that application (s 47(3)). It also follows that his Honour was correct to dismiss the proceedings, since the application was doomed to failure." 108 I would grant leave to the second appellant to amend her grounds of appeal (and, to the extent necessary, her originating application), but would dismiss her appeal with costs. I agree with the proposed costs order against Ms Soondur. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

REASONS FOR JUDGMENT GOLDBERG J 109 I have had the opportunity of reading in draft form the reasons for judgment of Gray J and Carr J. I agree with the reasons for judgment of Gray J and the orders which he proposes and would make some further observations. 110 I am satisfied that the learned primary judge did not consider whether the second appellant had made an application for a protection visa on 3 April 1992 or on 19 December 2000 which was to be considered on its merits and not simply to stand or fall by reference to the disposition of the application made on each date by her mother, the first appellant. 111 It does not emerge from the primary judge's reasons for judgment whether it was submitted to him that on 19 December 2000 the second appellant had made an application for a protection visa which had to be considered on its merits and which was not automatically resolved by the disposition of her mother's application. The proceeding before the primary judge was commenced only in the name of the first appellant and it constituted an application to review the decision of the Department of Immigration and Multicultural Affairs ("the Department") in refusing to accept the first appellant's application for a protection visa which was lodged on 19 December 2000. By the time of the hearing before the primary judge the second and third appellants had been added as applicants in the proceeding. However, the reasons of the primary judge only addressed the application made by the first appellant. His Honour did not address separately the applications made by the second appellant and the third appellant. As the second and third appellants were applicants in the proceeding, and particularly as they were minors under the age of majority, their individual applications should have been addressed. 112 In the circumstances I consider that the second appellant should have leave to amend her notice of appeal to add the following grounds: "(A) His Honour erred in holding that s 48A operated unilaterally to require the Minister not to consider the second appellant's application for a protection visa. (B) Alternatively, his Honour erred in failing to consider the application made by the second appellant." 113 The letters from the Department dated 20 and 22 December 2002 accepted that there were three persons who had lodged applications for a protection visa. In the light of the reasoning in Dranichnikov v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 397 ("Dranichnikov") the application form lodged by the second appellant on 19 December 2000 was not automatically disposed of by the disposition of her mother' application. 114 In his reasons for judgment Carr J disagrees with the reasoning of the Full Court in Dranichnikov. As Gray J has pointed out in his reasons for judgment Dranichnikov is based on a distinction between an application in a person's own right and an application as a member of the family unit of such a person. This distinction was recognised and allowed for in item 1126 of Sch 1 and item 866.211, 866.221 and 866.222 in Sch 2 of the Migration Regulations 1994 (Cth). It was not submitted before us by the Minister that Dranichnikov was wrongly decided and should not be followed. Rather the Minister, in written submissions, relied upon Dranichnikov as being of assistance to his case rather than the case of the second appellant. In my view this Court should follow Dranichnikov. 115 I have been troubled by the issue of the futility of allowing the appeal by the second appellant having regard to her present inability to comply with the criteria in item 866.222 in the Sch 2 of the Migration Regulations 1994 (Cth). That inability exists because her mother has not been granted a Protection (Class XA) visa. However, as Gray J has pointed out, there are other avenues open to the second appellant's mother. It is not for this Court to make assumptions as to what factual situation might exist at the time the decision‑maker is faced with considering how to deal with, and resolve, the application signed by the second appellant and lodged with the Department on 19 December 2000. That is more appropriately the province of the decision‑maker at that time. The decision‑maker will also have to reach a conclusion and a finding in relation to the application signed by the second appellant on 17 March 2000. 116 I am satisfied that it is not necessarily futile to allow the appeal by the second appellant and remit her application filed on 19 December 2000 for further consideration by the decision‑maker. There are a number of factual issues to be resolved and determined in relation to the application forms signed by the second appellant which cannot be determined by this Court and which necessarily arise for determination by the decision‑maker when considering the second appellant's application independent of her mother's application. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate: Dated: 25 October 2002 The First Appellant appeared in person

Counsel for the Second and Third Appellants: Mr P Braham

Counsel for the Respondent: Mr A Markus

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 20 February 2002

Date of Judgment: 25 October 2002

Whether an application has been "made" 32 The question whether an applicant for a protection visa "has made" a previous application for such a visa will involve, first, a consideration of the requirements of the Migration Act and the Migration Regulations as to the making of such an application. Plainly, as the Migration Act stood in December 2000, s 46(4)(b), reg 2.07 and item 1126 governed how the application was required to be made. Judged by those provisions, consideration would have to be given to whether use had been made of an approved form, whether any charge prescribed had been paid and whether the approved form had been completed in accordance with any directions on it. The requirement of reg 2.07(3), that an applicant must complete an approved form in accordance with any directions on it, is satisfied by substantial compliance. See Bal v Minister for Immigration & Multicultural Affairs [2002] FCAFC 189 at [35] - [40]. If the putative application had been made while earlier requirements were in force, it would be necessary for the decision-maker to have regard to those earlier requirements, in order to be satisfied that an application had been "made". 33 Consideration of whether an applicant "has made" an earlier application may also involve a determination of what has been applied for. Clause (3)(c) of item 1126 in Sch 1 to the Migration Regulations recognises the possibility of an application for a protection visa on the ground that the applicant claims to be a member of the family unit of a person who is an applicant for such a visa. The subclause provides that such a dependent application may be made at the same time and place as, and combined with, the application by the person for a protection visa in his or her own right. Of course, this provision leaves open the logical possibility that a person may have both a claim in his or her own right and a claim to be a member of the family unit of a person with a claim in his or her own right. There appears to be nothing to prevent both claims from being pursued. The fact that an applicant may have pursued previously only a claim to be a family member of another person is, however, relevant to the question whether that applicant "has made" an application. In Dranichnikov v Minister for Immigration & Multicultural Affairs [2001] FCA 769 (2001) 109 FCR 397, the Full Court held that the inclusion of a person as a member of the family unit of an applicant was not itself the making of an application by the person included, for the purposes of s 48A. Accordingly, a decision to refuse a subsequent application by the person included was not authorised by the Migration Act or the Migration Regulations and the person was not precluded from making an application in his or her own right. At [23] - [24], the Full Court referred to Part A of form no 866, which contained explanatory notes on how to apply for a protection visa, and said: "The notes clearly distinguish between a protection visa applied for by a refugee claimant and a visa applied for by a family member. In the latter case there is no suggestion there is any requirement for a family unit claimant to make a claim that he or she is a refugee. Rather, the notes state that family member claimants 'can be granted a Protection Visa' if they are members 'of a family unit of a person who has been determined to be a refugee'. As was pointed out to counsel for the Minister, the approved form did not state that a family member claimant was required to claim refugee status and family membership (as required by cl 866.211(b) of Subclass 866). Indeed, the explanatory notes in Pt A and the structure of Pts B, C and D of the approved form appear to assume that each claim is a true alternative to the other. The primary criteria were different in respect of refugee claimants and family member claimants and the Regulations, including the approved form, appear to have contemplated differentiation between a visa granted to a claimant under the Refugees Convention and a visa granted to a member of the family of such a claimant." 34 In his reasons for judgment, which I have read in draft form, Carr J expresses criticism of the reasoning in Dranichnikov. In the present case, counsel for the Minister did not ask the Court to depart from the principle laid down in Dranichnikov. Indeed, in written submissions filed in the appeal on 18 February 2002, the Minister invoked Dranichnikov as supporting his case. In my view, Dranichnikov cannot be said to be wrongly decided. It is squarely based on a distinction drawn in item 1126 of Sch 1 and item 866.211, 866.221 and 866.222 in Sch 2 of the Migration Regulations, to which I have referred above, between an application in a person's own right and an application as a member of the family unit of such a person. In my view, the reasoning in Dranichnikov is correct. Further, parliament has acted on the basis that Dranichnikov was sound authority, by enacting the new paragraph (ab) in s 48A(2) of the Migration Act, which reverses the effect of Dranichnikov. In the circumstances, this Court should follow Dranichnikov in a case in which the legislative amendment does not apply. 35 Of particular relevance to a case such as the present is a further element that must be considered in determining whether an applicant "has made" a previous application. It is trite to say that an act generally only has legal effect if the mind of the person performing it accompanies its performance. The making of a purported application by a person who lacks capacity to make such an application will not be regarded as an application. At common law, infants (ie persons under the age of twenty-one) were regarded as lacking capacity to do many things, particularly to enter into contracts other than certain defined classes of contracts. Commonly, the age of majority has been reduced by statute to eighteen. There is statutory recognition of the potential incapacity of a person not of full age who has come to Australia unaccompanied by an adult. Section 6 of the Immigration (Guardianship of Children) Act 1946 (Cth) provides that the Minister shall be the guardian of the person and of the estate of such an infant. See X v Minister for Immigration & Multicultural Affairs [1999] FCA 995 (1999) 92 FCR 524. Further, Part B of form 866 contains the instruction: "To be signed by all the persons named in question 1. If any of the applicants who should answer this question and sign the declaration is under 18 years of age or lacks legal authority to sign on their own behalf, a parent or guardian must sign on their behalf." 36 Part D of the same form above the box reserved for signature, contained the following instruction: "To be signed by the applicant. If the applicant is under 18 years of age or lacks legal authority to sign on their own behalf, a parent or guardian must sign on their behalf." 37 These instructions make it clear that want of full legal capacity, resulting from being under eighteen years old, is seen as relevant to the making of an application for a protection visa. 38 With respect to the making of applications pursuant to the Migration Act generally, the situation seems to be that it is necessary to enquire whether a particular non-adult applicant in fact had capacity (in the sense of sufficient understanding of the nature of the act involved) to make an application, at the time when the application was made. See Munkayilar v Minister for Immigration & Multicultural Affairs (1997) 49 ALD 588 at 591 - 592, Al Raied v Minister for Immigration & Multicultural Affairs [2001] FCA 313 at [36] - [39] and Jaffari v Minister for Immigration & Multicultural Affairs [2001] FCA 1516 at [37]. Thus, before it can be determined that a person "made" a previous application, there must be a factual enquiry as to the age of that person and as to his or her capacity to understand the nature of such an application.

The correctness of the decision 39 It is easy to see that the person who made the decision in relation to the application of 19 December 2000 did not engage in any of the analysis to which I have referred. No consideration at all was given to whether the second appellant had made any previous application. The entire application of 19 December 2000, brought by all three appellants, was rejected on the basis of the first appellant's prior application. It may be that proper consideration of the nature of the application of 19 December 2000, so far as it concerned the second appellant, would lead to the conclusion that she had not made her own application on that occasion. She was fifteen years and two months old when she signed the form 866. Enquiry as to her capacity to understand the nature of her act may have resulted in the conclusion that she lacked such capacity. No such enquiry was undertaken. If it had been, and the decision-maker had found that the second appellant's application had to be dealt with, refusal to deal with it on the basis that the second appellant had previously been named as a member of the family unit in her mother's application would have amounted to an error of law. The principle in Dranichnikov does not permit that conclusion. 40 If the second appellant were found to have had sufficient understanding of the nature of her act, it would also have been necessary for the decision-maker to determine whether the fact that she, and not a parent or guardian, signed both Part B and Part D of the form 866 amounted to substantial compliance with the requirement to complete an approved form in accordance with any directions on it. The fact that the first appellant also signed Part B of the form, and signed Part C, may have been relevant to such a determination. These questions were not argued on the appeal. 41 Failure to consider the second appellant's rights at all was clearly an error on the part of the decision-maker. It was an error that fell within s 476 of the Migration Act. The decision-maker did not have jurisdiction to make a decision in relation to the second appellant without considering the second appellant's case. Such a decision was not authorised by the Migration Act or the Migration Regulations. There was a clear failure to take into account relevant considerations (the circumstances of the second appellant) and such failure affected the jurisdiction of the decision-maker. It was a jurisdictional error. See the judgment of McHugh, Gummow and Hayne JJ, with whom Gleeson CJ expressed agreement, in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 180 ALR 1 at [73] - [75] and [84]. It was therefore an error of law. The grounds in s 476(1)(b), (c) and (e) of the Migration Act are made out. 42 The learned primary judge also failed to consider the case of the second appellant separately from that of the first appellant. Had he done so, his Honour should have held that the grounds in s 476(1)(b), (c) and (e) were made out. 43 Ordinarily, it would follow from these conclusions that the appeal should be allowed, the decision of the decision-maker should be set aside and the matter should be remitted to the decision-maker for further consideration, in the exercise of the powers given to the Court by s 481(1)(a) and (b). In the present case, however, the question arises whether it would be futile to make such orders because the same result would follow in any event.

The question of futility 44 If the matter were to be returned to the decision-maker, the first question would be whether there was before the decision-maker an application by the second appellant. As I have said, the determination of that question would require the decision-maker to undertake a factual enquiry as to the actual capacity of the second appellant to understand the nature of her act, at the time when she signed the application of 19 December 2000. The result of such an enquiry cannot be known in advance. The Court can reach no conclusion as to what the result might be. It must therefore be assumed that there is the possibility that it would be found that the second appellant had sufficient understanding of what she was doing for her signature on Parts B and D of the form 866 for it to amount to an application. As I have said, there is also the question of signature by the second appellant and substantial compliance with the directions on the form 866, the result of which is uncertain. 45 If the decision-maker determined that there was a valid application by the second appellant, the next step would be to determine the nature of the application. Plainly, it would be open to the decision-maker to find that the second appellant was making an application claiming to be a member of the same family unit as the first appellant. If that conclusion were reached, the question for the decision-maker would be whether to reject the second appellant's application on the ground of failure to comply with the criteria in item 866.222 in the second schedule to the Migration Regulations. On the facts as known to the Court at the present time, the second appellant would fail to comply with those criteria. That would be because the first appellant would not have been granted a protection visa. That fact cannot be determined conclusively, however. It is possible that the first appellant might make a further application for the exercise of the power of the Minister pursuant to s 48B of the Migration Act, that such further application might comply with the Minister's guidelines for dealing with such applications, and that the Minister might consider and grant it. The first appellant might then be in a position to make a further application for a protection visa, which might be granted to her. The question of the satisfaction of the necessary criteria must therefore be treated as one for the decision-maker and not for the Court. 46 I am also of the view that it would be open to the decision-maker to find that the second appellant's application of 19 December 2000 was an application in her own right, as distinct from an application as a member of the family of the first appellant. The factor giving rise to this issue is the failure of the second appellant to indicate in Part B of the form 866 whether she was making an application of one kind or the other. As I have said, there is no logical reason why she should not have made an application of both kinds. It is true that the second appellant has not yet completed a Part C of form 866. There remains the possibility that she could do so, in order to complete her own claim. The better view is that an incomplete application is not a nullity. See Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906 (2000) 100 FCR 495 and Sevim v Minister for Immigration & Multicultural Affairs [2001] FCA 1597 at [48] - [56], not following Minister for Immigration & Multicultural Affairs v A [1999] FCA 1679 (1999) 91 FCR 435. At least in some circumstances, an incomplete application can be supplemented at a later time to make it complete. See Yilmaz and Bal v Minister for Immigration & Multicultural Affairs [2002] FCAFC 189 at [35]. Compare Minister for Immigration & Multicultural Affairs v Li [2000] FCA 1456 (2000) 103 FCR 486. Information in the form of a completed Part C of form 866 would be information that the Minister is required to take into account, pursuant to s 55 of the Migration Act. 47 It might be thought that it is unnecessary to permit the second appellant to pursue her application of 19 December 2000, if she has made one, on the basis that it would be open to her to make an application in her own right for a protection visa at any time. The more recent amendment to s 48A, involving the insertion of par (ab) into the definition of "application for a protection visa" in subs (2) would have the effect of ensuring that such a further application would fail. The second appellant's only chance is if she has made the application of 19 December 2000 and is able to proceed with it. 48 The view that I have taken about the possibility of the second appellant pursuing a claim in her own right within the terms of the application of 19 December means that it is necessary to look also at the application of 17 March 2000. In Part B of the form 866 signed by the second appellant on that occasion, she did not make an election between an application in her own right and an application as a member of the family of the first appellant. It would be necessary for the decision-maker to look at the application of 17 March 2000, for the purpose of determining whether it was an application by the second appellant and whether it caused the second appellant to fall within the prohibition in s 48A. Again, the decision-maker would have to conduct a factual enquiry as to the capacity of the second appellant to understand the nature of her act when she signed the application of 17 March 2000. The possibility that she had not by then acquired sufficient understanding (at the age of fourteen) but had acquired such understanding by 19 December 2000 cannot be dismissed. If the application of 17 March 2000 were an application by her, the decision-maker would then have to construe it to decide whether it fell within the definition of "application for a protection visa" in s 48A of the Migration Act as that section stood at the time of the lodgement of the application of 19 December 2000. If the application of 17 March 2000 were found to be only an application based on membership of the family of the first appellant, the effect of Dranichnikov would produce the result that s 48A did not bar a further application by the second appellant on 19 December 2000. 49 In my view, it cannot be said that the first appellant's application for a protection visa on 19 December 2000 was a nullity. The better view is that the Migration Act does not make into a nullity even an application that is not a valid application, for the purposes of s 46. The Migration Act does not speak of "invalid" applications (except so far as the more recent amendment to s 46 is concerned). If an application that is not a valid application for the purposes of s 46 is considered pursuant to s 65, the resultant decision is preserved by s 69. See Yilmaz at [19] - [25] per Spender J and [72] and [93] per Gyles J, Sevim at [43], Thayananthan v Minister for Immigration & Multicultural Affairs [2001] FCA 831 at [32] - [33] and Goldie v Minister for Immigration & Multicultural Affairs [2002] FCA 433 (2002) 111 FCR 378 at [22]. The fact that an application might fail does not mean that it is to be considered a nullity. 50 The factual questions involved in these issues, particularly the capacity of the second appellant, cannot be determined by this Court. Accordingly, it must be recognised that referral of the matter back to the decision-maker for further consideration would not be futile. The second appellant has some hurdles to surmount, but it is possible that she may be entitled to pursue the application of 19 December 2000 either in her own right, or as a member of the family of the first appellant, or both.

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