Note: Regulation 2.12C explains the components of the first instalment of visa application charge and specifies the amounts of subsequent temporary application charge and non-Internet application charge. Not all of the components may apply to a particular application.
Additional applicant charge is paid by an applicant who claims to be a member of the family unit of another applicant and seeks to combine the application with that applicant's application.
(b) the second instalment (payable before grant of visa) is nil.
(3) Other:
(a) Application must be made in Australia.
(b) Applicant must be in Australia.
(c) Application by a person claiming to be a member of the family unit of a person who is an applicant for a Protection (Class XA) visa may be made at the same time and place as, and combined with, the application by that person.
(4) Subclasses:
866 (Protection)
184 This regulation also describes an application as being "made" (cl 1401 (3)(a) and (c)), and uses this word when describing an application by a person claiming to be a member of the family unit of the primary applicant. It uses the word to mean "filed" or "lodged". The language of sub-para (c) makes it clear that notwithstanding the ability to "combine" an application, the legislative scheme operates on the basis each non-citizen applies, in her or his own right, for a protection visa. Again, in my opinion "made" as used here is intended to be consonant with "applied" in s 45 and to describe the process by which a non-citizen applied for a visa.
185 Turning to the criteria prescribed for a Protection Visa (Class XA), by cl 866.112, there are some further refinements to the concept of member of the family unit.
186 Clause 866.211 prescribes four alternative criteria, one of which must be satisfied at the time of application. It provides:
(1) One of subclauses (2) to (5) is satisfied.
(2) The applicant:
(a) claims to be a person to whom Australia has protection obligations under the Refugees Convention; and
(b) makes specific claims under the Refugees Convention.
(3) The applicant claims to be a member of the same family unit as a person who is:
(a) mentioned in subclause (2); and
(b) an applicant for a Protection (Class XA) visa.
(4) The applicant claims to be a person to whom Australia has protection obligations because the applicant claims that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.
(5) The applicant claims to be a member of the same family unit as a person who is:
(a) mentioned in subclause (4); and
(b) an applicant for a Protection (Class XA) visa.
187 To some extent, this duplicates the criteria in s 36(2)(a) and (b) of the Act. The important point for present purposes is that the criteria are alternative and an individual can satisfy the criteria by establishing membership of a family unit, without ever needing to meet the substantive protection obligation criteria herself or himself.
188 Clause 866.221 is to the same effect for the "time of decision" criteria.
189 To illustrate what I consider to be an underlying assumption in the legislative scheme that each individual is treated as applying for a visa, and as "making" an application, reference can be made to the criteria in cl 866.224 (a) and (b), which provide:
The applicant:
(a) has undergone a chest x-ray examination conducted by a medical practitioner who is qualified as a radiologist in Australia; or
(b) is under 11 years of age and is not a person in respect of whom a relevant medical practitioner has requested such an examination…
190 This criterion applies to a "primary" applicant who makes claims to protection, and to members of the family unit of the primary applicant. The terms of this criterion demonstrate that a child under 11 years is treated as an applicant, as is a child over 11 years, as is an adult. The scheme may differentiate by reference to age in terms of what criteria must be satisfied, but it treats each non-citizen as an individual applicant and as needing to meet the applicable prescribed criteria.
191 Clause 866.225 is a further example of where the criteria differ as between a non-citizen under 18 and a non-citizen over 18. The criteria are different, but each prescribed set must be met: the fact that a non-citizen under 18 has her or his application combined on the same application form as an adult relative does not relieve the minor, including a small child, from needing to satisfy the requirements that her or his application must satisfy in order for s 65 to operate in her or his favour.
192 A final example is cl 866.230, which provides:
(1) If the applicant is a child mentioned in paragraph 2.08(1)(b), subclause (2) or (3) is satisfied.
(2) Both of the following apply:
(a) the applicant is a member of the same family unit as an applicant mentioned in subclause 866.221(2);
(b) the applicant mentioned in subclause 866.221(2) has been granted a Subclass 866 (Protection) visa.
(3) Both of the following apply:
(a) the applicant is a member of the same family unit as an applicant mentioned in subclause 866.221(4);
(b) the applicant mentioned in subclause 866.221(4) has been granted a Subclass 866 (Protection) visa.
193 Regulation 2.08 deals with children born after visa application. Thus, the subject matter of cl 866.230 is a newborn child. The legislative scheme, expressly by cl 866.230, treats that newborn child as an applicant.
194 The situation in both November 2011 and August 2014 remained the same as that described by Black CJ and Allsop J in SZGME at [89]-[90]:
Thus, there were two ways to obtain a protection visa: (a) to have claims under Art 1A(2) of the Refugees Convention (see the criterion referred to in s 36(2) of the Migration Act as it stood in 1996); and (b) to be a member of the family unit of someone who was granted a protection visa on the basis of his or her own claims.
The separate basis for a protection visa in s 36(2) led a Full Court in Dranichnikov v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 397 to conclude that the phrase 'application for a protection visa' in s 48A only encompassed the protection visa provided for by s 36(2) - that is, where the claims were made by the applicant. Section 48A was later amended to include in the phrase 'application for a protection visa' in that section the application by a family member: s 48A(2)(ab). In any event, it is clear from s 31(3) and the Regulations that persons in the position of SZGME were, when basing their application on family membership, applying for a protection visa. Nor was there any reason why an applicant could not apply for a protection visa under both bases.
(Emphasis added.)
195 The point made in the last sentence is, with respect, not unimportant. The criteria in s 36(2) (a) and (b) were independent of each other. An individual could apply on the basis of seeking to satisfy either, but also both: that is, having her or his own claims for protection, and being a member of the family unit of a person making claims for protection. The individual's application would then need to be assessed, independently, against both sets of criteria. The scheme does not preclude this occurring within the same application form or process.
196 In my opinion when construing s 48A(1) and the words "a non-citizen who…has made", one must construe those words in the context of how the Migration Act requires and contemplates a visa application will be made. In this legislative scheme, the Regulations are an integral part: in relation to the grant or refusal of visas, the Act does not and cannot operate without the Regulations. And for circumstances where one family member makes protection claims, and other family members make no individual protection claims but secure an entitlement to a visa because they are members of the same family unit, then the appropriate way to read s 48A(1) is to see those members of the family unit as having "made" an application for a visa. That is what s 45 requires. Subject to extraordinary provisions such as s 195A, if a person (including a family member of an applicant who makes claims for protection) has not applied for a visa, she or he cannot be granted a visa. I do not consider the use of the word "made" in the phrase "made an application" in s 48A(1) somehow narrows the categories of non-citizens to whom s 45 applies.
197 A number of other provisions in the Act confirm my view that where s 48A(1) uses the phrase "made an application", that phrase should be understood to refer to an individual applying for a visa as s 45 contemplates, whether as a member of a family unit or otherwise, and irrespective of whether the non-citizen is a minor, or a person without legal capacity.
198 Section 46(4) provides:
(4) Without limiting subsection (3), the regulations may also prescribe:
(a) the circumstances that must exist for an application for a visa of a specified class to be a valid application; and
(b) how an application for a visa of a specified class must be made; and
(c) where an application for a visa of a specified class must be made; and
(d) where an applicant must be when an application for a visa of a specified class is made.
199 It is clear that s 46(4)(b)-(d), when those provisions use the phrases "must be made" and "is made" are describing the process which s 45 requires. Paragraph (d) in particular is intended to operate in relation to each individual who applies for a visa, whether in her or his own right, or as a member of a family unit. The regulations made pursuant to this power, which I have set out at [177]-[182] above, are consistent with this meaning.
200 Section 50 should be mentioned. That is a provision designed to achieve some level of administrative efficiency and consistency in the consideration of claims to protection where a person has previously applied for a protection visa. Its purpose is to relieve the delegate from going back over information already the subject of a decision, and to allow the terms of any previous decisions about such information to be adopted by the current decision-maker. Section 50 does not mandate such an approach: rather, it is permissive. It encourages a decision-maker to look at the previous decision, evaluate it and decide whether to take the same approach to the information provided on the first occasion. It is not difficult to see how some consistency of decision-making is promoted by a provision such as s 50. On the majority's approach, s 50 would have no operation in relation to the first and second appellants if they were to apply again for a visa. On the majority's construction, s 50 (like s 48A) has no operation in relation to individuals who were included on a family unit application unless they gave informed consent. Although there is nothing in the Act to prevent a person included as a member of a family unit making individual claims for protection as part of that application (or, if a child, having claims made on her or his behalf), the purpose of s 50 would, in my respectful opinion, be frustrated on the appellants' construction.
201 It is unclear whether the appellants' construction has an effect on, for example, the procedural fairness provisions as they existed in August 2014 in Subdivision AB of Division 3 of Part 2 of the Act. Sections 56 and 57 then provided:
56 Further information may be sought
(1) In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa.
(2) Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way.
57 Certain information must be given to applicant
(1) In this section, relevant information means information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for refusing to grant a visa; and
(b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and
(c) was not given by the applicant for the purpose of the application.
(2) Subject to subsection (3), the Minister must:
(a) give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and
(c) invite the applicant to comment on it.
(3) This section does not apply in relation to an application for a visa unless:
(a) the visa can be granted when the applicant is in the migration zone; and
(b) this Act provides, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.
202 Plainly, these provisions will usually operate in relation to the "primary applicant" in a family unit. However it is not difficult to conceive of circumstances where these provisions might operate in relation to a member of a family unit. The obvious example is where there may be doubt whether the person is a member of the same family unit, as claimed. Such a person must be comprehended by the term "applicant" in those provisions and if that is so, there is no meaningful distinction between being an "applicant" and having a person who has "made an application".
203 Section 78, as it stood on 12 August 2014, concerned children born in Australia as non-citizens while one parent (at least) held a visa. It deems such a child to have been granted a visa. It does not suggest such a child does not need a visa which is specific to her or him.
204 Section 83 deals with a variation of the "family unit" model of visa grants. It concerns individuals (spouses and children) who are included in the passport of another person (that is, the other spouse or the parent). Taking s 83(2) as the example, it provides:
(2) Where:
(a) the name of a child is included in the passport or other document of identity of a parent of the child; and
(b) the child accompanies that parent to Australia (whether before or after the commencement of this section);
the child shall be taken to be included in any visa granted to the parent evidence of which is endorsed on the passport or other document of identity if, and only if, the child's name is included in the endorsement.
Note: Subsection 5(1) defines child and parent. For the purposes of this section, those definitions apply only in relation to visas granted on or after 1 July 2009: see the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Act 2008.
205 This provision only applies, on its face, to visas granted offshore. A child travelling on a parent's passport is deemed to have been granted a visa because, consistently with the scheme, a visa is an individual executive permission.
206 Section 87, as it stood on 12 August 2014, provided:
87 Limit does not prevent visas for certain persons
(1) Section 86 does not prevent the grant of a visa to a person who applied for it on the ground that he or she is the spouse, de facto partner or dependent child of:
(a) an Australian citizen; or
(b) the holder of a permanent visa that is in effect; or
(c) a person who is usually resident in Australia and whose continued presence in Australia is not subject to a limitation as to time imposed by law.
(2) For the purposes of this section, a child of a person is a dependent child if the child:
(a) does not have a spouse or de facto partner; and
(b) either:
(i) is under 18; or
(ii) is 18, 19 or 20 and is dependent on the person for:
(A) financial and psychological support; or
(B) physical support.
207 The assumption inherent in the text of this provision is that a dependent child (which would include an infant) is treated by the legislative scheme as "applying for" a visa.
208 Sections 91E and 91F deal with circumstances where, broadly, an individual non-citizen has the requisite kind of access to a "safe third country" and therefore may not be owed protection obligations by Australia. Section 91E is one of the provisions engaged by s 46(1)(d), and accordingly individual non-citizens covered by it will not make a valid visa application.
209 Section 91E provides:
91E Non-citizen to which this Subdivision applies unable to make valid applications for certain visas
Despite any other provision of this Act, if this Subdivision applies to a non-citizen at a particular time and, at that time, the non-citizen applies, or purports to apply, for a protection visa then, subject to section 91F:
(a) if the non-citizen has not been immigration cleared at that time - neither that application nor any other application made by the non-citizen for a visa is a valid application; or
(b) if the non-citizen has been immigration cleared at that time - neither that application nor any other application made by the non-citizen for a protection visa is a valid application.
210 Section 91F (like s 48B) then authorises the Minister to exercise a discretion to permit a person to apply for a protection visa, notwithstanding the operation of the subdivision.
211 The textual point is that where s 91E speaks of a non-citizen applying or purporting to apply for a protection visa, this can only be read as a reference to s 45. It can only be read as operating on each individual non-citizen who may have the requisite access to a safe third country, whether adult or minor, whether with or without legal capacity, whether primary applicant or spouse. Members of a family unit are not exempted from the preclusion contained in s 91E.
212 Similar observations can be made about s 91K, to which s 46 also applies, by reason of s 46(1)(d).
213 The Minister refers in his submissions to s 98 which provides:
A non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
214 As the Minister submits, s 98 is a further example of the absence from the scheme of requirements such as knowledge or consent. The scheme intends that each individual non-citizen be treated as an applicant for a visa, where applicable, without distinctions based on legal capacity or even (as s 98 illustrates) personal conduct.
215 The operation of s 98 does not extend to a visa applicant who had relied on a migration agent to complete a visa application form on her or his behalf where the migration agent perpetrates a fraud on the visa applicant: see Gill v Minister for Immigration and Border Protection [2016] FCAFC 142 at [50]. However s 98 does operate to fix a non-citizen with the consequences of a migration agent filling out a form with incorrect or incomplete information that may result in visa cancellation, or conversely, consideration and refusal of a visa application a non-citizen did not, in fact, authorise: see SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393 at [16], (Bennett J), referring to the Full Court decision in NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199.
216 To a large extent, a provision such as s 98 confirms the Act does not intend to incorporate common law principles of agency or parental authority in any comprehensive way. However, previous authorities have recognised the complexities of these matters: see the Full Court's decision in Al Raied v Minister for Immigration and Multicultural Affairs [2001] FCA 313 at [36]-[43].
217 The complexities need not be addressed in the appeal because, at the level of how the legislative scheme deals with who is an applicant for a visa (and who must be), I agree with the Minister's submissions that the Act's intention is clear.
218 Section 140 applies to holders of protection visas. By s 140(1), the consequence of cancellation of the visa of a primary applicant is, in certain circumstances, visited upon a person who holds a visa by reason of being a member of the family unit of the primary applicant. Similarly s 140(3) extends cancellation consequences to some children whose parent's visa is cancelled. These provisions reflect the connection the scheme makes between a primary applicant and members of the family unit, and between parent and child. While children secure individual visas, those visas are vulnerable to negative consequences under the Act which affect the primary applicant's or parent's visa.
219 So, in my opinion, it is with s 48A(1). The features of the legislative scheme to which I have referred reveal the following:
The legislative intention is that each individual non-citizen must apply for a visa.
The scheme does not differentiate in this requirement between adults and minors, nor between those with and without legal capacity, although it may impose different visa criteria which are, at least, age dependent.
The Act and the Regulations, which are intended to operate together to create a scheme for the grant, refusal and cancellation of visas, facilitate the consideration of visa applications by, and the grant of visas to, members of the family unit of an individual non-citizen identified by the scheme as the primary applicant. While this has some beneficial consequences, in the sense that the existence of family unit criteria enable the grant of visas to non-citizens who may not otherwise qualify for those visas, the scheme also ties the fate of the migration status of members of the family unit to the migration status of the primary applicant, including on some occasions in relation to cancellation of visas.
When the scheme describes a non-citizen as "making" an application, or an application as "made", it uses this language as a way of describing the process required of each non-citizen by s 45.
220 These features mean that, in my opinion, the correct construction of s 48A(1), including the phrase "made an application", is that it is intended to include each non-citizen who has applied for a protection visa, whether alone, or as a member of a family unit.