SZVBN v Minister for Home Affairs

1. Pursuant to r 36.05 of the Federal Court Rules 2011, the time for filing of a notice of appeal by the first applicant, SZVBN, be extended to 22 June 2018.
2. The draft notice of appeal stand as the notice of appeal in respect of SZVBN.
3. The appeal in relation to SZVBN be dismissed with costs.
4. The application for an extension of time by the second and third applicants, SZVBO and SZVBP, be refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LEE J: 1 This appeal gives rise to a commendably short point. The relevant facts are set out in SZVBN v Minister for Immigration and Border Protection [2017] FCAFC 90; (2017) 254 FCR 393. 2 In SZVBN a majority of the Full Court (Robertson, Griffiths and Wigney JJ with Siopis and Mortimer JJ dissenting) held that the primary judge, in the first judicial review proceedings involving these appellants, misconstrued s 48A of the Migration Act 1958 (Cth) (Act). The Full Court further held that a central issue which arose was not whether the children had "knowledge" of a first application for a protection visa made in 2011 (First Application), by a mother but which had included her son and her daughter (who were aged nine and 13 at the relevant time) but whether, on a proper construction of the Act, a second application (made in 2014) by the daughter (then aged 16) and including her mother and brother as members of the family unit (Second Application), was rendered invalid in circumstances where the First Application had been made. 3 Their Honours also held that the test and structure of s 48A directed primary attention to the person who "has made" a previous application for a protection visa, which necessarily raises questions concerning the age and legal competence of such a person. The matter was remitted to the primary judge. The primary judge noted that each of the then applicants, SZVBN (the daughter), SZVBO (the son) and SZVBP (the mother) sought judicial review of the determination that the Second Application was invalid. 4 On remitter, the issue was framed correctly as whether any of the applicants' protection visa applications were invalid by reason of s 46(1)(d) of the Act because of the operation of s 48A. The answer to that question, as the primary judge observed, depended upon whether each applicant had capacity to make the application: see [5] of the primary judge's reasons. There was no dispute between the parties on the appeal that the primary judge then directed himself to the correct question which his Honour identified at [6] as follows: The question to resolve is a factual one. That is, did any of the applicants have relevant knowledge and understanding of the [First Application]? If the question is answered in the negative, then there would be no basis for the Minister's Department to rely upon s.48A of the [Act], and the judicial review application would be successful. 5 It was not seriously in dispute below that the mother had full capacity and full knowledge and understanding of the First Application and no evidence was adduced to support any contrary finding. Hence, the primary judge was left with resolving issues as to the knowledge and capacity of the daughter (SZVBN) and the son (SZVBO). 6 The primary judge then, at [9], correctly summarised the ratio decidendi of the majority of the Full Court in SZVBN. And then, after accurately detailing the Full Court's reasoning, at [19], said as follows: Finally, in dealing with the evidence in this case, it is necessary to bear in mind [141] of the judgment of Griffiths J, with which Robertson and Wigney JJ agreed: For the purposes of considering and determining the possible application of s 48A of the Act as in force at the relevant time, appropriate findings will need to be made concerning the capacity and understanding of the first and second appellants when the first protection visa application was made, including whether they had any knowledge of the fact that they had been included in the application. Presumably, findings will need to be made concerning the children's appreciation and understanding as to the nature and implications of the first protection visa application generally, as well as their capacity to comprehend the Australian Values Statement and Applicant's declaration in items 28 and 30 of Part D, both of which were signed personally by the first and second appellants respectively. This will necessarily involve findings being made as to the circumstances in which their signatures came to appear in these parts of Part D and how that apparent fact can be reconciled with their denial of any knowledge on their part that they were included in the first protection visa application. It may be that these inquiries reveal that some of these events occurred because of the requirements of reg 2.07(c), but currently that is mere speculation. Absent relevant findings of fact, it is entirely unclear at present whether or not there is a proper factual foundation for s 48A to apply to the particular circumstances of the first and second appellants. 7 This extract leads to the sole issue which has been articulated on the current appeal. In essence, it is said, that as a matter of law, the knowledge and understanding of the daughter and the son sufficient to enable s 48A of the Act to apply in relation to the First Application must be more than mere knowledge and understanding that the [First Application] constituted a "general application for permission to remain in Australia". The requisite knowledge and understanding ought instead to be that the First Application was for refugee status in general terms or, in other words, protection in Australia from harm elsewhere. 8 The primary judge had rejected this contention and his critical factual findings are set out at [38]-[39]. These paragraphs are extracted below but, importantly, in introducing those paragraphs, his Honour had correctly directed himself to the fact that it was the applicants who bore the onus of showing that they did not have the requisite understanding and competence as at the date of the First Application, that is, 17 November 2011. 9 His Honour then went on to find at [38]-[39]: Having heard the evidence of SZVBO, I am left in no doubt that in 2011, he did not have any understanding of the protection visa application on which he wrote his name and no competence to make that application. Although there is some room for doubt, I am satisfied that he was competent to make the second protection visa application in 2014. He understands now that the document bore upon his entitlement to remain in Australia. While his understanding has developed over time, there is sufficient evidence to find that a level of competence had developed by 2014. The position of SZVBN is different. There is no question at all about her capacity and understanding in 2014. There is a question about her capacity and understanding in 2011. I am not satisfied, however, that she lacked understanding of the essential nature of the first protection visa application and, in my view, she was competent to make that application. She knew that the application may have had something to do with the family's residence in Australia and their right to remain here. This had personally impacted upon her because of her difficulty gaining admittance to high school. She was well aware of her father's difficulties, although she was probably not aware of the precise reasons why protection was sought. To my mind, however, the critical factor was the applicant daughter's awareness that she was making an application in order to remain in Australia. 10 If his Honour had not proceeded to set out the last four sentences of [39], then the appellants do not appear to dispute that the primary judge's reasons would not have revealed the error which the appellants contend is demonstrated. 11 In short, the appellants assert that this impugned part of his Honour's findings indicated the view that it was sufficient for s 48A of the Act to apply in relation to SZVBN, for her to have understood that the First Application was "an application in order for her to remain in Australia". Further support for this is found, the appellants contend, by reason of his Honour's conclusion that s 48A of the Act did not apply in relation to SZVBO because of his Honour's finding that it was not until later that he understood a document such as the First Application "bore upon his entitlement to remain in Australia". 12 When asked to identify the "high watermark" of the Full Court's decision in SZVBN, relied upon to demonstrate that the primary judge had strayed from a principled approach, counsel for the appellants pointed to SZVBN at [141] extracted at [6] above. It was said that the nature and implications of the First Application generally, must extend to a more specific notion of relevant knowledge and understanding reflecting the distinct subject matter of the protection visa application. 13 Consistently with the way in which the Full Court approached the matter, the primary judge correctly identified that the issue was one of competence or capacity and made factual findings relevant to that issue. Like in other legal contexts, the relevant question is whether the relevant party was capable of understanding the general nature of what they were doing by their participation in the particular piece of business transacted (see Gibbons v Wright (1954) 91 CLR 423 at 437). 14 The approach of the primary judge was not only consistent with what the Full Court had said at [141], but also with what had been said by the Full Court in Soondur v Minister of Immigration and Multicultural Affairs [2002] FCAFC 324; (2002) 122 FCR 578 at 590 at [38], where Gray J, with whom Goldberg J agreed, said that, with respect to the making of applications pursuant to the Act generally: ...the situation seems to be that it is necessary to inquire 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. 15 It was to this inquiry that the primary judge correctly directed himself. No error is demonstrated. 16 At the commencement of the hearing of the appeal, I granted leave for the appeal which had been filed very shortly out of time to be advanced. I did so in relation to the claim made by the first appellant, the daughter, SZVBN. I would not grant leave for the other two appellants to have leave to bring an appeal out of time because it is entirely unclear to me how there is any justiciable controversy between those parties and the Minister. The son has won below and there is no challenge to the finding the primary judge made as to the capacity of the mother who, as noted above, did not advance any positive case below that she lacked any relevant capacity. 17 I will make orders accordingly. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.