FEDERAL COURT OF AUSTRALIA

SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91

MIGRATION – proper construction of s 48A Migration Act – whether s 48A applies to invalid applications – whether valid application was made.

MIGRATION – whether Full Court authorities in Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 and Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486 are inconsistent.

MIGRATION – proper construction of phrase “in the interests of justice” in s 477(2) of the Migration Act.

MIGRATION – substantial compliance with Form 866.

PRECEDENT – proper approach of Federal Magistrate to authority of single Judge exercising the appellate jurisdiction of the Federal Court.

PRECEDENT – proper approach of single Judge exercising appellate jurisdiction when faced with Full Court authority in appellate jurisdiction.

Held:   (a)      Section 48A of the Migration Act applies only to valid applications for a protection visa.

            (b)      The Full Court authorities in Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 and Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486 are not inconsistent.

            (c)      Extension of time for bringing an application in the Federal Magistrates Court not “in the interests of justice” within the meaning of s 477(2) of the Migration Act.

            (d)      Refugee Review Tribunal did not err in hearing a review on individual claims of appellants.  

Acts Interpretation Act 1901 (Cth) s 25C

Migration Act 1958 (Cth)   s 48A  

Bal v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 189 ALR 566   discussed

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Limited (1979) 41 FLR 338   discussed

Dranichnikov v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 397   distinguished

Meyers v Casey (1913) 17 CLR 90   cited

Miliangos v George Frank (Textiles) Ltd [1976] AC 443  referred to

Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486   discussed and applied

Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314   discussed

Minister for Immigration and Multicultural and Indigenous Affairs v WAIK [2003] FCAFC 307   discussed

Phanouvong v Minister for Immigration and Multicultural Affairs (1999) 60 ALD 438  referred to

Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166   referred to

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82   cited

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162   referred to

Soondur v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 578   cited

SZBYR v Minister for Immigration and Citizenship 235 ALR 609   cited

SZECD v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 53   discussed and disapproved

Thayananthan v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 297   referred to

Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 1   referred to

Yilmaz v Minister in Immigration and Multicultural Affairs (2000) 100 FCR 495  discussed and explained

Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344   discussed

SZGME v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 457 OF 2007

BLACK CJ, MOORE AND ALLSOP JJ

30 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

The application for an extension of time in which to file and serve a notice of appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Black CJ and Allsop J

1                          These appeals concern the proper construction of s 48A of the Migration Act 1958 (Cth), consideration of the validity of the applications for protection visas in question and the circumstances in which relief under the Judiciary Act 1903 (Cth), s 39B might be withheld.

The proper construction of s 48A of the Migration Act 1958 (Cth)

2                          Before coming to the appeals individually, it is appropriate to begin by discussing one aspect of the operation of the statute and the regulations and the jurisprudence thereon.

3                          Section 48A provides that a non-citizen who, while in the migration zone, has made “an application for a protection visa”, where the grant has been refused, may not make a further application for a protection visa while in the migration zone.  Section 48A has been dealt with on a number of occasions by this Court.  Some of those decisions are discussed below.  That jurisprudence has proceeded on the basis that the phrase “an application for a protection visa” means a valid application for a protection visa.  As far as can be discovered from the jurisprudence, this has been the fundamental assumption made by the Court and by the Commonwealth in argument to the Court.  It appears to have been the assumption upon which the Migration Act has been administered for over a decade.  It is an assumption which lies at the heart of the reasoning of the cases to which we will refer.

4                          The Minister has argued before this Court, for the first time (it also not having been raised in the Federal Magistrates Court below) that “application for a protection visa” does not mean an application that is valid but, in effect, any request for such a visa, whether validly made in accordance with the Migration Act and Regulations or not.  The point can be accepted as arguable but, in our view, it is not correct.  Before we deal with the argument on its merits, a preparatory comment should be made.  The construction that the phrase “application for a protection visa” means a valid application was essential to the reasoning of both Yilmaz v Minister in Immigration and Multicultural Affairs (2000) 100 FCR 495 and Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486 (to which cases we will come presently).  To admit this wider construction now would undermine existing Full Court authority to the extent that it is settled and consistent (which we think, substantially, it is).  Thus, some clarity in the point is required for it to be the instrument to overturn the carefully considered views of two Full Courts, in particular Li, dealing with detailed provisions of statute and delegated legislation in such a heavily regulated environment.

5                          The argument about the meaning and content of s 48A took place over two days and involved certain refinements of argument by Mr Kennett, who appeared for the Minister in both appeals. Ultimately, he propounded three arguments that appeared to be separate, though related:  first, that the phrase (defined in s 48A(2) in an inclusive manner) “an application for a protection visa” was not restricted to a valid such application; secondly, that the respondent had made an application for review to the Tribunal which was, in effect, “an application for a decision that [he was] a refugee” for the purposes, and within the meaning, of s 48A(2)(b) and was not invalid as such; and, thirdly, that here there was a valid refusal of the visa in the Tribunal, even if the application were invalid.

6                          The third of these arguments involves a direct attack on Li 103 FCR 486, on the basis that it is wrong and inconsistent with a number of Full Court decisions, in particular, Yilmaz 100 FCR 495, Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344, Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314 and Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 1. 

The first argument: whether the phrase “an application for a protection visa” in s 48A includes an application that is not valid under the Migration Act or Regulations

7                          In our view, the text, context and purpose of s 48A lead to the conclusion that the section applies when there has been a valid refusal of a valid application.  Parliament, in s 46, was at pains to set out the requirements of an application for a visa to be valid.  The words “if, and only if” are used.  Amongst the various requirements in s 46 for validity and invalidity is provision for regulations prescribing how and where an application for a visa must be made as criteria for an application to be valid: s 46(3) and (4) (b) and (c).

8                          Section 47 then makes clear that the Minister is to consider only valid visa applications.  See in particular s 47(3):

To avoid doubt, the Minister is not to consider an application that is not a valid application.

These provisions, together with s 48A, are contained in Subdivision AA of Division 3 of Part 2 of the Act.

9                          Section 65 of the Migration Act (contained in Subdivision AC of Division 3, Part 2) concerns decisions to grant or refuse visas.  Section 65(1) is in the following terms:

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.

[emphasis added]

10                        In Yilmaz 100 FCR at 511-512 [82]-[83], Gyles J (with whom Spender J agreed) expressed the view that the introductory words of s 65(1), “After considering a valid application for a visa”, do not form part of the conditions of the exercise of the power in s 65, but are the assumption upon which the section proceeds – that is, the assumption that s 47 would be complied with.  This view of s 65 was accepted by the Full Court in Thayananthan v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 297 at 303 [26] and 304 [32] and Soondur v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 578 at 593 [49] and 604 [109].  It was not said in any of the submissions in this Court to be plainly wrong.

11                        Accepting this construction, s 65 still assists in recognising that s 48A is directed to a valid visa application.  What is assumed is the consideration of a valid application for a visa. The refusal of an application referred to in s 48A contemplates circumstances in which the decision-maker is permitted to consider the application.  Section 47 makes clear that the Minister is not to consider an invalid application.

12                        The context of s 48A in Subdivision AA is the clear limitation of an application for a visa to a valid application, precisely constrained in a detailed manner by the Act and Regulations.  This context has been reflected in cases in this Court since 1996:  see Li 103 FCR at 499-500 [59]-[60].

13                        A broader context can also be identified.  Subject to the terms of the statute (here, s 69, to which we will come), a statute would not lightly be construed on the basis that a decision might be made by the executive in clear contravention of the statutorily-expressed will of Parliament.  The construction of an Act will generally assume compliance by the executive with the terms of that Act, and other laws of the Parliament.

14                        Whilst the purpose, no doubt, of s 48A was to prevent repeated applications, that was in the closely regulated environment to which we have referred.  The Court in Li 103 FCR at 503-504 [77]-[79] recognised the policy that can be seen to lie behind the formal requirements and, in particular, that which lies behind the crucial regulation in Li (and here), Reg 2.10(1)(b), that the application form and its supporting material be given to the Department.  The Court said the following at 503-504 [79]:

Contrary to the Minister's submissions, this is not a case for the application of the maxim "lex non praecipit inutilia".  There may be debate about the wisdom of a legislative scheme that places so much emphasis on adherence to formal requirements. But given the assumptions underlying the scheme, there is obvious utility in requiring all the elements going to make up a valid application to take place at an office of Immigration. In the absence of such a requirement, there is a risk of documents going astray and of decisions being made (or not being made) without all relevant information being placed before the decision maker.  If an applicant can complete a prescribed form in stages (as the legislation has been construed to permit), there are advantages in ensuring, even on pain of rendering an application invalid, that all components of a valid application form are provided to an office of Immigration.

[emphasis added]

This, of course, is only one aspect of the regime required by Subdivision AA and the Regulations for the validity of an application, but it suffices to illustrate that the detailed and prescriptive regime chosen by Parliament can be seen to have purposes that support the requirement for valid applications.  Put more broadly, the Parliament intended that both the applicant and the Minister would be required to act strictly according to law and the applicant would be prevented from making a further application after the lawful undertaking of the regulated and ordered, lawful decision-making process.

The second argument:  whether there was an application under s 48A(2)(b)

15                        This argument was that the application for review before the Tribunal was an application of the kind referred to in s 48A(2)(b), because the substantive matter for decision was whether the applicant, as a non-citizen, was a refugee.

16                        Section 48A(2)(a),(b) and (c) is in the following terms:

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.

17                        Section 39 of the Migration Reform Act 1992 (Cth) (referred to in s 48A(2)(c)) was in the following terms:

The application for a determination by the Minister that a person is a refugee within the meaning of the Principal Act as in force immediately before 1 November 1993 that was made, and not finally determined (within the meaning of the Principal Act), before that date is taken, on that date, to be an application for a protection visa (within the meaning of the Principal Act as in force on that date).

18                        The application before the Tribunal was a review under Part 7 of the Migration Act.  The decision that a Tribunal is required to make under that process is whether the applicant is entitled to a protection visa and whether an order contemplated by s 415 should be made.  That decision was, in 1998, whether the applicant for the visa was a non-citizen in Australia, in respect of whom the Tribunal was satisfied Australia has “protection obligations under the Refugees Convention as amended by the Refugees Protocol”:  see the Migration Act, ss 36(2) (in its then form) and 65.  The phrase “protection obligations” encompassed the whole of Article 1 of the Convention:  NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161.  The task of the Tribunal was not to find as a fact that the applicant was a refugee.  It was to reach, or not reach, a state of satisfaction about whether Australia had protection obligations in respect of, or to, the applicant.  It will, having undertaken the review process contemplated by Part 7, make one of the decisions called for by s 65, within the framework of s 415.  It is a misuse of language to call the application to the Tribunal for review under Part 7 of the Migration Act an application for a decision that the applicant was a refugee.

19                        The relevant Explanatory Memorandum (to the Migration Legislation Amendment Bill (No 3) 1994) stated the following in the notes about the new s 48A:

Proposed new section 48A provides that a non-citizen, while he or she remains in the migration zone, who has made an application or applications for protection visas which have been refused, may not make a further application for a protection visa.  This provision applies even if a non-citizen’s application for a protection visa has not been finally determined (that is, if, for example, it is being reviewed by the RRT).  An application for a protection visa, for the purposes of this proposed section, includes any application by a person for refugee status or for a visa or entry permit in existence before or after 1 September 1994, a criterion for which is refugee status.  Dependents of such persons are also included in this definition.

[emphasis added]

20                        The fact of refugee status to the determination of an application for a visa or an entry permit was relevant before September 1994:  see generally the regime described in Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 and Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.  Certainly, s 48A(2)(a) appears to have this purpose attributable to the earlier form of the Migration Act.  From the terms of s 48A(2)(b) and (c), so does s 48A(2)(b).

21                        The words in s 48A(2)(b) were not intended, and are not apt, to cover an application to the Tribunal for review under Part 7 of the Migration Act. 

The third argument:  the reconciliation of Li and Yilmaz

22                        The submissions of the Minister were to the effect that Yilmaz and Li were inconsistent.  In SZECD v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 53, a single Judge of this Court (exercising the appellate jurisdiction of the Court under the Federal Court of Australia Act 1976 (Cth), s 25(1A)) was of the same view.  In our view, Yilmaz and Li are not inconsistent; rather, they are consistent, if one accepts the premises on which each is founded.

23                        Central to the reconciliation of Yilmaz and Li is regulation 2.10.  This deals with where applications for a visa must be made, a subject left to the regulations by the Migration Act, s 46(4)(c).  Relevantly, regulation 2.10(1)(b) provided that:

An application for a visa must be made

…

(b) In the case of an application to be made in Australia … at any office of Immigration in Australia.

24                        The debate that was settled in Yilmaz (by majority) was whether an application that was invalid at the time it was made because of incompleteness (there being an absence of supporting material or information setting out the nature and basis of the claims for a protection visa) could be rendered a valid application by the later provision of the additional and necessary material.  In Yilmaz, this further provision of information occurred after the delegate’s decision, but in time for the Tribunal’s decision.  The majority rejected the argument that because the application before the delegate was invalid there was no authority in the Tribunal to review a purported decision of the delegate.  This argument was rejected for two principal reasons.  First, s 69 of the Migration Act preserved the validity of the delegate’s decision, at least to allow merits review, notwithstanding the clear terms of s 47.  Section 69(1) was, and is, in the following terms:

Non‑compliance by the Minister with Subdivision AA or AB or section 494D in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed.

…

25                        Secondly, the well-known line of cases beginning with Collector of Customs (NSW) v Brian Lawlor Automotive Pty Limited (1979) 41 FLR 338 supported the proposition that the review process which imported merits review by an administrative body operated (subject to statute to the contrary) on valid and invalid decisions alike.  It is the decision that has in fact been made that is reviewed.  After Yilmaz, Zubair 139 FCR 344, Ahmed 143 FCR 314 and Uddin 149 FCR 1 reiterated this proposition:  see, in particular, Ahmed at 322 [36].  The fact that some defect (even one leading to jurisdictional error) can be ascertained in the decision subject to review, does not prevent a review body exercising the powers and discretions of the person who made the decision:  see, here, the Migration Act, s 415.  This can be illustrated by understanding what occurred in each of these cases.

26                        In Brian Lawlor 41 FLR 338, the Full Court rejected the argument that the Administrative Appeals Tribunal (the AAT) had no authority to undertake a review of a decision by the Collector, if the Collector had no statutory authority to make the decision.  The AAT had jurisdiction and could, as it did, decide the legal point.  It made a decision that the decision which had been made without authority be set aside and that no action be taken purporting to revoke the licence in question.

27                        In Yilmaz 100 FCR 495, the application was incomplete at the time it was made.  It was incomplete when the delegate made the primary decision.  It was completed by provision of information both to the Tribunal and to the Department by the time the Tribunal was undertaking its review function.  Thus, regulation 2.10(1)(b) was satisfied.  So, that regulation had no relevance to the case.  By the time of the decision of the Tribunal, there was a valid application.  The Tribunal had authority to undertake merits review because of s 69 and Brian Lawlor; it acceded to the powers and discretions of the delegate: s 415; there was a valid application that could be considered (s 47) and a decision could be made (s 65).  There was no call for the Court to direct itself to circumstances in which the application remained invalid at the time a decision was to be made on review under Part 7.  Regulation 2.10 was not overlooked; it was not relevant.  In Yilmaz 100 FCR at 509 [73] Gyles J (with whom Spender J agreed) said the following:

In Phanouvong v Minister for Immigration and Multicultural Affairs [1999] FCA 1489, Finn J held that material received by the RRT would cure deficiencies in an application in circumstances not distinguishable from the present.… 

In Phanouvong v Minister for Immigration and Multicultural Affairs (1999) 60 ALD 438 it would appear that the information may not have been supplied to the Department.  Even if that be so, this passage in Gyles J’s reasons should not be taken as authority effectively dealing with regulation 2.10.  The phrase of Gyles J “not distinguishable from the present” should be understood as not relevantly distinguishable.  The issue of regulation 2.10 was not before the Court in Yilmaz.  It can be taken not to have been to the minds of the judges in that case.  Regulation 2.10 was not apparently cited to Finn J in Phanouvong 60 ALD 438.  Statements by judges should be read in the context in which they are made.  Yilmaz is not any authority about the authority and status of the Tribunal with a review before it in circumstances where there is still no valid application in existence.

28                        Yilmaz was followed in Thayananthan v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 297, a case in which the originally incomplete and invalid application was later (before the delegate’s decision) supplemented and completed by the provision of a statutory declaration to the Department.

29                        In Li 103 FCR 486, the issue not dealt with in Yilmaz came to a Full Court for consideration.  In a joint judgment (Ryan, Sackville and Emmett JJ) the Court identified regulation 2.10(1)(b) and the failure to comply with it prior to the Tribunal’s decision as crucial.  The Court distinguished Yilmaz as a case concerned, by the time the Tribunal made its decision, with a valid application.  The Court rejected the notion, explicit in the submissions on behalf of the Minister here, that the entitlement to review an invalid decision meant that the Tribunal could refuse a visa on review and validly affirm the decision.  The Court said, at 103 FCR at 504 [81] and [82], the following:

Similarly, it is difficult to see how s 415(1) of the Migration Act, can support a decision by the RRT on the merits, in circumstances where no valid application has ever been lodged.  Section 415(1) empowers the RRT, for the purposes of the review of a RRT-reviewable decision, to exercise all the powers and discretions that are conferred by the person who made the decision.  Yilmaz held that s 415(1) permitted the RRT to review, on the merits, a decision of the Minister’s delegate where a valid application for a visa had been lodged, albeit after the date of the delegate’s decision. Yilmaz did not consider whether the RRT had jurisdiction to review on the merits a decision of the Minister’s delegate where no valid application for a protection visa had ever been lodged. Nor did Yilmaz consider whether reg 2.10(1)(b) would be satisfied if the information required to complete a Form 866 were supplied to the RRT, rather than to an office of Immigration. 

It strains language to say that the powers which are conferred on the RRT for the purposes of the review of a RRT-reviewable decision include the power to receive essential components of the prescribed application form.  Regulation 2.10(1)(b) requires an application to be made at an office of Immigration in Australia. That includes all essential components of the prescribed application form.  Section 415(4) of the Migration Act makes it clear that the RRT cannot make a decision not authorised by the Migration Act or the regulations. A decision to refuse a visa where no valid application for a visa has been made is a decision not authorised by the Migration Act or the regulations. The fact that the Migration Act preserves an unauthorised decision by a delegate, so as to make it subject to review by the RRT, does not confer on the RRT greater powers than a delegate could ever have properly exercised in relation to an invalid application.

[emphasis in original]

30                        This approach is not contrary to Brian Lawlor 41 FLR 338.  The Tribunal has no authority other than under the Migration Act to grant or to refuse a visa.  It accedes to the powers and discretions of the delegate, which include ss 47 and 65 of the Migration Act.  Section 69 does not validate what the Tribunal does without statutory authority:  see the terms of s 69 and also Phanouvong 60 ALD at 443-444 [24].  The ratio decidendi of Li 103 FCR at [81]-[82] is that a valid application is not merely a requirement affecting the delegate’s power, it also affects the authority of the Tribunal.  This view is one that is not plainly wrong.  It recognises, through s 415 and ss 47 and 65, that only a valid application must be considered by the Tribunal.  No equivalent of s 69 saves the Tribunal’s decision from the effect of considering an application that is not valid.

31                        In Minister for Immigration and Multicultural and Indigenous Affairs v WAIK [2003] FCAFC 307 a Full Court, in an extempore judgment, after a hearing in which Li was not cited, concluded that the Tribunal had committed no jurisdictional error in reviewing and affirming the decision of a delegate even where the application was and remained invalid.  Given the different basis for invalidity and the extempore nature of the judgment, it is not a sufficient basis to depart from [81] and [82] in Li. 

32                        It should be noted that the conclusion reached in Li does not involve a conclusion that the review process could not be commenced.  The information might be supplied to the Tribunal and the Department during the review process.  Yilmaz, not Li, would then be the relevant authority.

33                        In Zubair 139 FCR 344, the delegate’s decision to cancel the visa was taken without following the mandatory requirements of s 119 of the Migration Act in giving particulars.  This was jurisdictional error; but it did not mean that the decision was not a “MRT-reviewable decision”.  The Migration Review Tribunal (the MRT) had power to review the decision and make its own decision.  The requirements of s 119 did not qualify the MRT’s powers; that is, there was authority in the MRT from the Migration Act to make a decision, absent s 119 having been complied with.

34                        In Ahmed 143 FCR 314, the same approach was followed.  The Court (Hely, Gyles and Allsop JJ) said at 322-323 [35], [38], [39], [40] and [41]:

The delegate here had an available power to exercise: ss 116(1)(b). However, as is now common ground, the procedural steps under s 119 provided for by the statute had not been completed. In that sense, the exercise of power by the delegate was unauthorised: there was "jurisdictional" error. It does not follow, however, that in exercising the statutory power of review that the Tribunal did not accede to the power that was before the delegate for the purposes of s 349 of the Act. That power was in s 116(1)(b) of the Act.

…

The identification of what is the MRT-reviewable decision by the delegate is not determined by a conclusion that s 119 was not complied with. What was done under s 119, or what should have been done under s 119 may affect the assessment of the boundaries of the decision of the delegate, by assisting an understanding as to the subject matter of the MRT-reviewable decision that the Tribunal is reviewing. However, the fact of a lack of compliance with s 119 neither destroys the power under s 116(1)(b), nor governs the identification of the context of the decision. What the decision was is to be found by examining the terms of the power purportedly exercised, its statutory context, the terms of the reasons, the form of the decision and the material before the decision-maker.

If s 119 has not been satisfied, that is no more a reason to deny the Tribunal the task of exercising a full review of the MRT-reviewable decision, than would be an asserted failure of the delegate to afford procedural fairness or otherwise to comply with requirements failure to undertake which leads to the conclusion that jurisdictional error has occurred.

It was argued that the absence of an equivalent of s 119 in Division 3, 4 and 5 of Part 5 of the Act, insofar as the procedures of the Tribunal are there set out, reflects a more important place for s 119.  In particular, it was said that the absence of the procedural precondition to exercise the power (see s 124) meant that the Tribunal had no power to exercise on review since it only accedes to powers available to the Minister in point of execution.  Thus, it was said that the Tribunal acceded only to an absence of power (that is s 116(1)(b) made unavailable by s 124 and the absence of compliance with s 119).

We disagree.  That is not, in our view, the proper working of the statutory provisions in question.  Section 119, as we have earlier said, was enlivened at an earlier stage in the decision-making process.  It was enlivened when the Minister was considering an act – the cancellation of the visa.  By the time the review process was enlivened, that was a matter of history. The visa was cancelled or purportedly cancelled.  Parliament has laid out procedures for the fair conduct of the Tribunal’s review.  Section 119 is unnecessary to repeat.  It is to be recalled, in this context, that under s 349 of the Act the Tribunal accedes to the powers and discretions conferred on the Minister or delegate not the procedures which bind them.  The procedures required of the Tribunal are set out in Division 3.4 and 5 of Part 5.

[emphasis in original]

Thus, the deficiencies that invalidated the primary decision did not (because of the terms of the statute) affect the authority of the tribunal, there the MRT, to make a fresh decision.

35                        In Uddin 149 FCR 1, the Full Court was once again dealing with a failure by the delegate to comply with s 119.  It refused to find Ahmed 143 FCR 314 to be plainly wrong.

36                        The essential difference between Yilmaz, Zubair, Ahmed and Uddin, on the one hand, and Li, on the other, is that as a matter of statutory construction, the defects in the primary decision in the former cases did not affect the power exercised by the relevant review tribunal.  This was so in Yilmaz because the defect had been cured; it was so in Zubair, Ahmed and Uddin because, as a matter of construction, the defect in the authority of the delegate did not affect the authority of the tribunal on review.  In Li, on the other hand, the Full Court was of the view that the persisting lack of validity of the application directly qualified the power of the Tribunal, through ss 47 and 415.  In Brian Lawlor there was no power, at the level of the decision-maker or of the AAT.  In Li the same applied.  The Tribunal could only set the decision aside and make no grant or refusal itself.  It could not, by affirming the decision of the delegate, refuse a visa.

SZJOZ

37                        In the light of the above, it is now necessary to deal with the appeal and notice of contention in SZJOZ. 

38                        The facts in SZJOZ were not in dispute.  In December 1996, an incomplete application form dated November 1996 was received by the Department.  A decision of the delegate was made on 7 March 1997 refusing a visa.  No valid application for a protection visa had yet been made (the application remaining incomplete).  The applicant sought review of this decision by the Tribunal in April 1997.  Detailed claims were provided to the Tribunal, but not the Department.  The applicant claimed to fear persecution because of his adherence to the Catholic Christian faith.  In April 1998, the Tribunal affirmed the decision of the delegate.  Some aspects of his evidence were rejected.  On the authority of Li 103 FCR 486, this decision of the Tribunal was invalid.  The applicant then wrote to the Minister seeking the exercise of the power under s 417.  This was refused in October 1998.  Thereafter, the applicant made no contact with the Department until 2006 in relation to formalising his status.  On 21 June 2006, he lodged another application for a protection visa, this one being valid.  In an affidavit read in the Federal Magistrates Court, on which he was not cross-examined, he explained this passage of time from 1998 to 2006, as follows:

[16]  The migration agent prepared a letter dated 1 May 1998 (the May 1998 letter).  I signed the May 1998 Letter.  I did not exactly understand the nature of the May 1998 letter.  I simply understood that it contained additional submissions in support of my case.  Annexed to this affidavit and marked “B” is a copy of the May 1998 Letter (pages 15-17).

[17]  I did not know that my bridging visa would expire after the Tribunal’s decision.  I did not know whether or not I was still legally in Australia.  At no time did the Migration Agent inform me that my bridging visa had expired or would soon expire.  At no time did the Migration Agent inform me that I needed to approach the Department to apply for an extension on my bridging visa.

[18]  In the second half of 1998 and in relation to the May 1998 Letter, I attempted to contact the migration agent by telephone on a number he had previously provided to me, however I was not able to get through.  I also attempted to visit the office of the migration agent, however his office was no longer located where I had previously sought advice from him, and I did not know where his office had been relocated.

[19]  I did not have any further contact with the migration agent after signing the May 1998 Letter.

[20]  In January 2007 I was shown by my current solicitor a copy of a letter from the Minister dated 30 October 1998 (the Minister’s letter), which was a letter from the Minister in reply to the May 1998 Letter refusing to grant me a protection visa.  Until January 2007, I had not received or seen a copy of the Minister’s Letter.  Annexed to this affidavit and marked “C” is a copy of the Minister’s Letter (page 18).

[21]  The Minister’s Letter was addressed to Mr [name provided], my alias, at the Marrickville address.  Despite what Mr Jin Chao Lin had previously told me as set out in paragraph 13 above, I was never informed by him that a letter had arrived for me at the Marrickville address.

[22]  I made no further contact with the Department of the Minister in relation to formalising my status in Australia until 2006 because I was not sure whether or not I was legally in Australia and I was scared that if there was a problem with my visa I would be deported back to China.

[23]  Until late 2005, I did not discuss my immigration status with anyone except one or two close Church friends who I trusted, because I was scared that if there were any issues with my visa I would be deported back to China.

[24]  In late 2005 I had a conversation with a sister from St Dominic’s Church in Flemington and a friend at a party, during which one of them asked words to the effect:

                        “What is your visa status here in Australia?”

            I replied:

                        “I am not sure.”

            One of them said:

                        “You should speak with Father McGee.  He may be able to help you.”

[25]  In or around December 2005, I had a conversation with Father McGee, a priest from St Dominic’s Church in Flemington, in which words were said to the following effect:

            [Applicant]       “I applied for a protection visa in 1997 but the application was refused by the Refugee Review Tribunal.”

Father McGee:“You should go to the Legal Aid office as they may be able to help you.”

[26]  In or about January 2006 I went to the Legal Aid office in Sydney with Father McGee. On or about 3 February 2006 I was referred to Gilbert + Tobin and then to the Refugee Advice and Casework Service (RACS).

[27]  During March and April 2006, with assistance from RACS, I prepared a statement for a fresh application for a protection visa which was lodged on 21 June 2006.

39                        On 10 August 2006, the applicant received a letter from the Department stating that s 48A prevented the application being made, but that it would be considered under s 48B.

40                        The applicant did not file his application for review within 28 days of receipt of that letter as required by s 477(1), but was within the further period of 56 days provided for in s 477(2).

41                        The analysis earlier in these reasons leads to the conclusion that the Federal Magistrate was correct to conclude that s 48A did not apply.  Her Honour said the following at [36]:

Accordingly, the Purported Protection Visa Application is not a valid application and s.48A does not apply.  The refusal by the delegate on 10 August 2006, to consider the Applicant’s protection visa application, lodged on 21 June 2006, on the basis that s.48A of the Act prevented the delegate from doing so because there had been another decision, is wrong.

42                        In coming to that conclusion, the Federal Magistrate did not accept the conclusion of the single Judge in SZECD 150 FCR 53 that Li was inconsistent with Yilmaz and should not be followed.  For the reasons we have given, we have come to the same conclusion.  We should observe, however, that the principles of precedent required that the Federal Magistrate follow the decision in SZECD, being a decision of this Court in the appellate jurisdiction from the Federal Magistrates Court.  We do not think that it was open to her Honour to regard what was said in SZECD as obiter.  In this regard the observations of Lord Simon of Glaisdale in Miliangos v George Frank (Textiles) Ltd [1976] AC 443 at 478 are apposite, though his Lordship was in dissent.  His Lordship said:

It is the duty of the subordinate court to give credence and effect to the [more recent] decision of the immediately higher court, notwithstanding that it may appear to conflict with the [earlier] decision of a still higher court.  The decision of the still higher must be assumed to have been correctly distinguished (or otherwise interpreted) in the decision of the immediately higher court.

See also the valuable guidance in this respect in the judgment of Moffitt P in Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166, in particular at 177-180.

43                        Before turning to the question of the exercise of discretion to withhold relief, it is also appropriate to say something about the approach taken by the single Judge in SZECD.  The conclusion that a Full Court decision should not be followed should be one left to another Full Court, even if the judge is exercising the appellate jurisdiction of the Court.  The Court in Li said that Yilmaz was distinguishable.  That should have been sufficient for a single Judge, if the appeal were not to be referred to a Full Court for hearing.

44                        It is now necessary to turn to the exercise of discretion of the Federal Magistrate.

45                        In [56] of her reasons, the Federal Magistrate stated the following:

In particular, the conduct of the Applicant during the 8 year period, between his inability to locate his migration agent and his approach to his priest for assistance, is one shrouded by perpetuated dishonesty and a complete absence of any attempt to seek to inform himself about his rights or status in Australia.  The Applicant plainly knew his status in Australia was under question.  He deposed that he had not discussed his immigration status with anybody, “except one or two close Church friends” whom he trusted, before raising it with a sister from his Church.  The terms in which he answered the sister make it clear that he was unsure of his status.  Moreover, he has had a merits hearing by the Tribunal of the same claims he now makes.

[emphasis added]

46                        The Federal Magistrate plainly drew a conclusion that the applicant’s conduct was one of “perpetuated dishonesty”.  No such matter was put to him in cross-examination.  Indeed, he was not cross-examined at all.  With the utmost respect to the Federal Magistrate, this was not a fair conclusion from the applicant’s affidavit.  He stated in [17] of the affidavit extracted above that he did not know his bridging visa would expire.  He frankly said that he was unsure of the legality of his position: but he said that no-one had told him that he needed to approach the Department.  The essence of his position was stated in [22] of his affidavit.  To say that this is “shrouded in dishonesty” reflects a lack of acceptance of this sworn evidence, that was not the subject of cross-examination. This is a sufficient error in the exercise of the discretion to warrant this Court re-exercising the discretion:  House v The King (1936) 55 CLR 499 at 504-505.

47                        Section 477 at the relevant time was in the following form:

(1)   An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.

(2)   The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:

(a)   an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and

(b)   the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.

(3)   Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.

(4)   The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.

[emphasis added]

48                        It was submitted on behalf of the applicant that the phrase “in the interests of the administration of justice” in s 477(2) was limited in its scope to the facts as to why the time limit in s 477(1) was not complied with.  Thus, it was submitted, that the Federal Magistrate erred in taking the applicant’s history since his arrival into account and that this Court should not likewise look at the facts other than the explanation for the failure to meet the time limit in s 477(1).  We do think that any such inflexibility attends such a broad phrase.  The words are wide and general and relate to the interests of the administration of justice.  Of course, the focus of the exercise of discretion must not be lost sight of – the extension of the 28 day period in s 477(1).  Nevertheless, in any particular case, the applicant’s behaviour in Australia before the time in s 477(1) began to run may be relevant to the question of the extension of time.

49                        The delay in meeting the deadline in s 477(1) was explained in an affidavit of the applicant’s solicitor:  that the applicant was waiting on a decision by the Minister under s 48B.  That was, perhaps, unwise or naïve, but it did not reveal any lack of bone fides which might attend the administration of justice.  More difficult is the applicant’s long stay in Australia as recounted by him (and accepting his affidavit) and the later effective renunciation of the earlier course that he had taken of invoking the machinery of the Tribunal. 

50                        As was said in Bodruddaza v Minister for Immigration and Multicultural and Indigenous Affairs [2007] 234 ALR 114 at 123-124 [46], the purpose of relief involved in constitutional or statutory writs is a high one – the keeping of officers of the Commonwealth to the law; see also Gaudron and Gummow JJ in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 107-108 [55].  However, as McHugh J said in SAAP v Minister for Immigration and Multicultural Affairs (2005) 215 ALR 162 at 183-184 [80], discretionary relief may be refused under s 39B if the party’s conduct is inconsistent with the application for relief, such as if there has been delay or if the applicant has waived or acquiesced in the invalidity of the decision.  To similar effect, see the discussion in the reasons of Gaudron and Gummow JJ in Aala 204 CLR at 108-109 [56]-[57].  See also SZBYR v Minister for Immigration and Citizenship 235 ALR 609 at 618 [28] and Meyers v Casey (1913) 17 CLR 90.

51                        Though the delay in bringing the application concerning the decision here is not “unwarrantable”, in that it was about 50 days late, it was made in the context of eight years passing from the time of the Tribunal’s decision.  The applicant chose to take no step to address his position, having himself invoked the executive authority to undertake a consideration of the merits of his claim.  That conduct, the invoking of the consideration by the Tribunal of the merits of his claim and waiting eight years to deal with his own circumstances, is inconsistent with the relief he now seeks – the setting aside of the decision of a delegate that he cannot make another application for consideration of his claims on their merits.  We accept that this earlier course of conduct of invoking merits consideration and then doing nothing for eight years did not involve any dishonesty.  The applicant chose, partly out of fear, not to approach the Department to clarify his position.  Eight years later, however, he wishes to invoke again the machinery of the executive to consider, again, his claims on their merits.

52                        In our view, this prior conduct is inconsistent with the relief he now seeks.  It also reflects a long delay in taking the step that gave rise to the need for the primary relief sought.

53                        In our view, it is not in the interests of the administration of justice to extend the time for filing the application.

54                        In our view, the appeal in this matter should be dismissed with costs.

SZGME

55                        It is necessary, in order to be clear, to refer to the family members of the appellants’ family as “mother”, “father” and “daughter”.  The appellant SZGME is the mother.  She is an Armenian national who arrived in Australia on 18 January 1996.  Given that s 91X of the Migration Act forbids this Court publishing the names of applicants, the identification of the relevant parties by their family position is the only way to identify them clearly.  We will refer to the appellant as SZGME or as the mother.

56                        An application for a protection visa was filed in November 1996.  On the first page of Part B of that form the daughter, father and mother were listed as “applicants 1, 2 and 3.  On page 10 of Part B, each applicant was required to answer a question and sign the document.  The question and following instruction were in the following terms:

57                        The daughter ticked “yes” and filled in Form C, which contained an outline of her claims.  The father and mother ticked “no” but did not fill in Part C or D.  All three, daughter, father and mother, signed Part B.

58                        On 11 March 1997, their authorised migration agent, in a letter referring to a file described by reference to the daughter, sent information to the Department.  A statement enclosed was, however, signed by all three.  The factors described in the statement did not distinguish the position of the daughter and her parents.  All three were spoken of collectively.  For instance the following was stated;

… they are entirely destitute without property or citizenship, and are persecuted in their own country.

Fleeing for life, we appeal to the commonwealth on their behalf for refugee status, with their life only remaining.

59                        A decision of the delegate was made on 26 March 1997 not to grant a protection visa; but this decision was withdrawn.  Information that had been submitted had been overlooked.

60                        On 1 May 1997, the Department wrote to the daughter stating that “[a]s your parents appear to have their own claims for refugee status, they will both need to complete a copy of Form C … enclosed.”  The writer noted that if they did not have their own claims they needed to fill in “Form D”, a copy of which was also enclosed.

61                        By 19 June 1997, when the delegate made a decision, no response to that letter had been received by the Department.  In fact, the father and mother had each filled in and signed his and her Part C on 3 June 1997.  A letter of their migration agent dated 28 June 1997 to the Refugee Review Tribunal (“the Tribunal”) put it that “[t]hese did not reach the case officer in time”.  They were not sent to the Department, but to the Tribunal.

62                        The delegate’s decision was expressed in the following terms in a letter to the daughter dated 19 June 1997:

A criterion for a Protection Visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the United Nations Refugees Convention as amended by the Refugees Protocol.

Your application for the grant of a Protection Visa is refused as you do not meet this criterion.  The attached decision record gives the reasons for your refusal.

As you have been refused a Protection Visa, the following members of your family unit who were included in your application but had no claims of their own to be a refugee have also been refused a protection Visa:

[name of mother]

[name of father]

…

63                        The reasons of the delegate included the following:

The applicant has not provided details of the discrimination faced by her and her family, nor has she provided any evidence of a failure of state protection.  In view of this, I find no evidence of past persecution, and in view of the information above, I do not consider that there is a real chance either the applicant, or her family, will be persecuted on return to Armenia.

…

I find that [name of daughter provided] does not have a real chance of Convention based persecution if returned to Armenia and that her fear of Convention based persecution on return is consequently not well founded.

…

I find that [name of daughter provided] is not a person to whom Australia has protection obligations under the Refugees Convention,

as there is not a real chance of persecution for a Convention ground if she is returned to Armenia and that her fear of persecution on return is consequently not well founded.

…

6.1     The family head has not been granted a protection Visa.

6.2     I am satisfied that none of the applicants listed at Part A as covered by this decision meet the prescribed criterion in clause 866.222 of the Migration Regulations for the grant of a protection visa.

6.3     I therefore refuse the grant of a protection visa to the following applicants:

          [name of father]

          [name of mother]

64                        The daughter applied for review to the Tribunal.  The father and mother were referred to in the application for review as “persons included in the decision made by the Department…”.  In support of this application, a joint statement signed by all three and the Part C documents signed by the mother and father were submitted. All three attended the hearing and gave evidence.  It was clear that all three were urging the Tribunal to hear the individual claims of each. 

65                        The Tribunal’s decision made on 20 October 1998 was in the following terms:

The Tribunal affirms the decision not to grant a protection visa.

We do not place any significance in the use of the singular number in this sentence.  All three had applied for protection visas.  All three had urged the Tribunal to grant protection visas to them all.

66                        The Tribunal treated each as having claims that had been pressed.  Between pages 10 and 13 of its reasons, the Tribunal dealt with each applicant separately and evaluated the claims of each. The same conclusion was drawn about each:

The Tribunal is not satisfied that [Ms; Mrs; Mr …] has a well-founded fear of persecution for any Convention reason should [she/he] return to Armenia now or in the reasonably foreseeable future.

67                        By an amended application filed 14 October 2005, the mother sought judicial review of the Tribunal decision in the Federal Magistrates Court.  A summary of the grounds of appeal, as appearing in the respondents submissions to the Court, is as follows: 

(a)    that the delegate had lacked jurisdiction, and the Tribunal had lacked power to affirm the delegate’s decision, because she had not made a valid protection visa application;

(b)    that the Tribunal had failed to accord procedural fairness by not putting certain propositions to the Appellant;

(c)    that the Tribunal failed to consider or make findings on certain aspects of the Appellant’s claims; and

(d)    that one of the Tribunal’s findings about the Appellant’s husband had been arbitrary.

68                        As argued on appeal, only the first point is relevant – what might be called the invalid application point.

69                        The Federal Magistrate concluded that he was bound by SZECD 150 FCR 53 to hold that the supply of Part C to the Tribunal enabled the Tribunal to undertake a “review” of the mother’s claims and affirm the decision about the mother.

70                        For the reasons already given, we are of the view that SZECD 150 FCR 53 was wrongly decided, and to that extent, not a basis for upholding the Tribunal’s decision.

71                        SZGME submitted:

(a)    The daughter made a valid application.

(b)    The father and mother did not make a valid application, since neither Part C or Part D was ever filled in and given to the Department.

(c)    The Tribunal had no authority to grant or refuse a visa, through the vehicle of the orders in s 415, to the mother or the father, no valid application ever having been made by the mother.

72                        Submissions were put on behalf of SZGME that she made no application for a protection visa unless and until she filed with the Department her own separate claims.  That is not so.  The relevant form for a subclass 866 visa, and regulation 866 at the relevant time which set out the criteria for a protection visa, made clear that someone is an applicant for a protection visa even if he or she is a member of the same family unit as someone who makes specific claims under the Refugees Convention.  We will return to this point in a little more detail later.  If the mother and the father did not make a valid application it was because they had provided neither Part C nor Part D, and taking into account the Acts Interpretation Act 1901 (Cth), s 25C.

73                        If there was a valid application for a protection visa by the mother as a family unit member, it was refused by the delegate.  The refusal of this application was sought to be reviewed.  In such circumstances, it is difficult to see why SZGME could not, before the Tribunal, change the basis for her claim to such a visa from being a member of a family unit to her own fears of persecution.  We will return to this point in a little more detail later.

74                        If there was no valid application and if the Federal Magistrate was wrong in deciding the application on the basis of SZECD 150 FCR 53, it is still necessary to consider whether relief should be awarded. 

The question of substantial compliance

75                        The Acts Interpretation Act, s 25C is in the following terms:

Where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient.

76                        In Bal v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 189 ALR 566 the Full Court said at 573 [36]-[37]:

Section 25C of the Acts Interpretation Act 1901 (Cth) provides:

“Where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient.”

The section applies to the Regulations as if they were an Act (subs 46(1) of the Acts Interpretation Act).

Although Form 866 is not prescribed by the Act or the Regulations, it has been accepted that a “substantial compliance” requirement is applicable to it; …

77                        At the relevant time, reg 2.07(1) of the Regulations provided that for the purposes of ss 45 and 46 of the Migration Act the “relevant Part of Schedule 1” set out “the approved form (if any) to be completed by an applicant”.  Reg 2.07(3) stated that “[a]n applicant must complete an approved form in accordance with any directions on it.”  In item 1126 in Schedule 1 to the Regulations the form was identified as “Form: 866”. 

78                        The Regulations did not stipulate or specify different application forms for those applicants who claimed to have separate claims and those who relied on family membership.  Rather, Form 866 had distinct parts and directed different parts to be filled in depending on the nature of the application.

79                        In this context, we agree with the submission of the Minister that the question of substantial compliance is judged by reference to compliance with Form 866 and not by reference to the individual parts.  As was said in Bal 189 ALR  at 573-574 [39]-[40]:

In Shahabuddin the applicant gave more detail of the “political opinion” ground on which he relied, stating that he had been a member of the Bangladesh Freedom Party and adding that a “statement would be sent very shortly”.  Katz J followed Hill J in Nader at [4] and Tamberlin J in Myint at [15], in holding that substantial compliance was to be assessed by reference to the purpose of the form in eliciting the applicant’s claim to be a refugee within the Convention and that the questions posed in the form were only guidelines to that end.  Accordingly, so his Honour held, it was not necessary to be able to distil from the applicant’s responses, answers to all questions on the form.

We agree with the approach taken to the notion of “substantial compliance” in the present context by Heerey J in Nie and Katz J in Shahabuddin, outlined above.  (See too, Wu at 280 per RD Nicholson J; Minister for Immigration & Multicultural Affairs v A per Merkel J at [43], [44]; Li v Minister for Immigration & Multicultural Affairs [2000] FCA 421 (Heerey J) at [49].)

[emphasis added]

80                        The Minister submitted that the material submitted to the delegate substantially conveyed both the basis of the independent claims of SZGME and of her family status.  Thus, it was submitted, the purposes of both Parts C and D of Form 866 were substantially satisfied and complied with.

81                        As to the former, the document together with the Part B provided a tolerably clear basis for understanding the mother’s claim to be a refugee.  The questions posed in Part C were a guide to that.  Part C contained numerous questions which were not addressed by SZGME:  education, past employment, method of leaving Armenia.  The essential or substantial purpose of Part C was, however, to elicit and express the basis of the claims for protection. The document sent by the migration agent to the Department did that.

82                        The purpose of Form 866, including Part D, was to provide a framework for the assertion of a claim to be a “member of the same family unit” as the primary applicant: see cl 866.222(a) in force at the relevant time.

83                        The notion of being a member of a family unit was defined in reg 1.12 and cl 866.112.  Regulation 1.12(1) was in the following terms:

Subject to subregulations (2) a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:

(a)    a spouse of the family head; or

(b)    a dependent child of the family head or of a spouse of the family head; or

(c)    a dependent child of a dependent child of the family head or of a spouse of the family head; or

(d)    a relative of the family head or of a spouse of the family head who:

(i)     does not have a surviving spouse or any other relative (other than the family head) able to care for that relative in the relevant country ; and

(ii)    is usually resident in the family head’s household; and

(iii)   is dependent on the family head; or.

(e)    a relative of the family head or of a spouse of the family head who:

(i)     has never married or is widowed, divorced or separated; and

(ii)    is usually resident in the family head’s household; and

(iii)   is dependent on the family head; or.

Clause 866.12 made clear that the family head need not be the primary visa applicant.

84                        The information contained in the Part B signed by SZGME, the supplementary statement signed by her sent by her migration agent and her migration agent’s covering letter made clear that she claimed to be a member of the family unit which included her daughter.  The documents made clear the family relationship.  To the extent that the daughter needed to be a “dependent child of the family head” for the purposes of regulation 1.12(1)(b), or otherwise to fall within regulation 1.12(1)(d), the information provided revealed that the daughter was 20 years old, and a bookkeeper, though not currently employed.  The joint statement stated that “[t]hey are fully supported by family” in Australia.  Whilst this information may have been less than clear as to the elements of the definition, it was sufficient for the delegate to conclude, as she did, that SZGME was a member of the family unit of which the daughter was part.  The contents of the documents provided were sufficient to reveal the basis of the claim to be a member of the family unit of which the daughter was part.  Thus, although Part D was not filled in, Form 866 was substantially complied with in this respect.

85                        There was, in our view, substantial compliance with the regulations requiring Form 866 to be used.  In these circumstances, the Tribunal was entitled to deal with the individual claims of SZGME with her Part C and further statement.

86                        If there was only substantial compliance with Form 866 insofar as it related to SZGME being a member of a family unit, there was, nevertheless, a valid application for a protection visa.  We see no basis in the Regulations to conclude that a further application had to be filed to permit consideration of a changed basis for consideration of a valid application for a protection visa.

87                        If a valid application for a protection visa was made (as it was) and if a decision was made to refuse a protection visa (as it was), the process of review was engaged upon that decision.  The expressed basis to supplant the decision with a favourable one under s 415 was made on new grounds (the separate claims).  The decision under review should be not be confined to the original basis for the claimed protection visa.

88                        These conclusions are underpinned by an appreciation of the form of the Migration Act and Regulations at the relevant time.  A non-citizen required a visa to stay lawfully in Australia:  Migration Act, ss 4(2), 13 and 14.  A “particular class” of visa had to be applied for:  s 45.  Section 36 established a class called “protection visas”.  Section 36(2) provided that a criterion for the grant of such a visa was that the applicant was a non-citizen to whom Australia had protection obligations.  Section 31(3) permitted the Regulations to prescribe criteria for visas of a specified class, including protection visas under s 36.  The Regulations made further provision in relation to protection visas.  Schedule 1 item 1266 designated protection visas as Class AZ, with one subclass, Subclass 866.  Part 866 of Schedule 2 of the Regulations set out the criteria for grant.  Clauses 866.21 and 866.22 were 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.

866.22     Criteria to be satisfied at time of decision

866.221   The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.

866.222   In the case of an applicant referred to in paragraph 866.211(b):

(a)    the Minister is satisfied that the applicant is a member of the same family unit as a person who has made specific claims under the Refugees Convention (a ‘claimant’); and

(b)    that claimant has been granted a Protection (Residence) visa.

89                        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.

90                        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.

91                        The relevant decision to be reviewed was the “decision to refuse to grant a protection visa”:  s 411(1)(c).

92                        Dranichnikov 109 FCR 397 does not govern s 411(1)(c); Dranichnikov was a case about the words in s 48A. It is tolerably clear that there was no class of visa for which SZGME was applying other than a class AZ Subclass 866, on the basis that she was a member of a family unit including someone who had individual claims under Article 1A(2) of the Refugees Convention, and after her migration agent’s letter to the Tribunal, on the basis of her own claims.

93                        Having sought review in the Tribunal of a decision to refuse to grant a protection visa based on a valid (on this hypothesis) application, SZGME, through her agent, made it clear to the Tribunal that she wished to have the decision reviewed on the basis that she had her own claims.  Within its remit of reviewing the decision not to grant a protection visa, the Tribunal had authority and an obligation to consider whether SZGME met the criteria for a grant of a protection visa.  There was a valid application (on this hypothesis).  Therefore, Li did not require the conclusion that the Tribunal had no power to grant or refuse a visa, through the exercise of its power under s 415.

94                        Thus, if there was a valid application because there was substantial compliance with the Regulations, either insofar as SZGME was applying on the basis of her own claims, or insofar as SZGME was applying as a member of a family unit, the Tribunal had authority to refuse the grant of the protection visa in the manner it did.

95                        If there was a valid application based on SZGME as a family member, and if it were accepted that the Tribunal was somehow limited to that basis for the application for a protection visa, a question would arise about the utility of relief, since no application was made to set aside the delegate’s decision.

96                        If there was no valid application made by SZGME, a serious question would arise as to whether relief should be withheld for discretionary reasons.  An extension of time to file a notice of appeal was granted by a Judge of the Court.  So, the discretion would be that attending the grant of relief under the Judiciary Act 1903 (Cth), s 39B.

97                        The respondent presses the argument that was pressed before the Federal Magistrate; that relief should be refused on the ground that the position now taken is entirely inconsistent with the approach adopted by SZGME before and in the Tribunal.

98                        The Minister took no particular point about the eight year delay of itself.  SZGME had been involved in a class action.  Nevertheless, the conduct of the mother was entirely inconsistent with the relief sought.  It was she who sought a protection visa and she who failed to file the correct forms.  It was she who, nevertheless, supplied sufficient information to the Tribunal to make out a case based on her own claims or on her membership of her family unit.  She then requested the Tribunal to exercise its power to examine her claims on the merits and provided evidence in support of that, including in oral evidence at the hearing.  She engaged the executive machinery in considering her affairs and making a decision about her.  The mother now says, for reasons that are her own, or her migration agent’s, fault (the failure to fill in Part C or Part D of Form 866 or send the Part C to the Department as well as the Tribunal) that all this was for nothing and she wishes to have her application considered on its merits, again (although, on this hypothesis, for the first time strictly according to law).

99                        This is conduct so inconsistent with the relief sought as to disentitle her to the relief she seeks.  The precise form of the relief sought is an order extending time in which to file and serve a notice of appeal.  For the above reasons that application should be dismissed, as would be the appeal.

100                      The orders should be that the application for an extension of time in which to file and serve a notice of appeal be dismissed with costs.

Associate:

Dated:         30 May 2008

REASONS FOR JUDGMENT

MOORE J:

101                      These two appeals are from decisions of the Federal Magistrates Court.  They were heard together.  A central issue in both appeals is the effect of s 48A of the Migration Act 1958 (Cth) ("the Act").  The purpose of the section is straightforward and clear.  A person might apply for a protection visa and have the application considered by a delegate of the Minister.  The delegate might refuse to grant the visa.  That refusal might have been confirmed on review by the Refugee Review Tribunal.  The purpose of the section is to prevent the person making a further application for a protection visa.  The question raised by these appeals is whether that purpose is achieved broadly, in all cases where a delegate considers a protection visa application and refuses to grant the visa.  If not, it is because the operation of s 48A is narrower and the purpose is only achieved where the refusal relates to a valid application for a protection visa.  The resolution of this issue depends, in part, on the impact of other provisions of the Act on the proper construction of s 48A and whether binding authority of the Full Court of this Court dictates a particular conclusion.

The Legislative Scheme

102                      It has been approximately ten years since the delegates' decisions were made in the two appeals, and a number of the relevant provisions of the Act have been amended.  In the context of these appeals, it is necessary to distinguish between certain provisions of the Act as they stood at the time of the delegates' decisions and other provisions of the Act as they stood at the time the SZJOZ lodged, or proposes to lodge in the case of SZGME, a second application for a protection visa.

Relevant provisions of the Act as at the time of the delegates' decisions

103                      The relevant provisions of the Act at the time of the delegates’ decisions were mostly found in Division 3 which dealt with applications for visas by non-citizens.  It is necessary to draw attention to these provisions as at the time of the delegates' decisions in order to properly characterise the nature of the applications the appellants made. 

104                      The class of visas known as protection visas was created by s 36 of the Act.  Subsection 36(2) provided that:

 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.

105                      Section 415 dealt with the Tribunal's powers and provided:

(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.

106                      The regulation making powers established by the Act included a power to make regulations prescribing criteria for a visa or visas of a specified class, including protection visas (s 31(3)), and for regulations providing that visas or visas of a specified class may only be granted in specified circumstances (s 40(1)).

107                      Regulation 1.18 of the Migration Regulations 1994 (Cth) ("the Regulations") provided that the Minister may approve forms for use in making an application for a visa.  Form 866 was the form approved for making a protection visa application (clause 1126 of Schedule 1 to the Regulations) as at the time of the delegates' decisions.

108                      Regulation 2.03 provided:

(1)        For the purposes of subsection 31(3) of the Act (which deals with criteria for the grant of a visa), the prescribed criteria for the grant to a person of a visa of a particular class are:

(a)       the primary criteria set out in a relevant Part of Schedule 2; or

(b)       if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria.

…

109                      Regulation 2.04 provided:

For the purposes of section 40 of the Act, and subject to these Regulations, the only circumstances in which a visa of a particular class may be granted to a person who has satisfied the criteria in a relevant Part of Schedule 2 are the circumstances set out in that Part of Schedule 2.

110                      Regulation 2.07 provided:

(1)        For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1:

(a)       the approved form (if any) to be completed by an applicant;

(b)     the visa application charge (if any) payable in relation to an   application;

(c)        other matters relating to the application.

…

(3)        An applicant must complete an approved form in accordance with any directions on it.

111                      Regulation 2.10 provided:

(1)        An application for a visa must be made:

(a)       in the case of an application to be made outside Australia:

…

(b)       in the case of an application to be made in Australia:

(i)        subject to regulation 2.09, subregulation (3) and subparagraph (ii), at any office of Immigration in Australia; or

(ii)       if the application is for an Electronic Travel Authority (Class UD) visa — in immigration clearance.

(2)        …

(3)        An unlawful non-citizen who is located by an officer of Immigration                        may apply for a bridging visa directly to that officer.

(4)        …

112                      Regulation 1.03 defined "Immigration" as the Department of Immigration and Multicultural Affairs.

113                      Schedule 1 to the Regulations at the time of the delegates' decisions set out the specific ways in which a non-citizen was to apply for a visa of a particular class.  Protection visas were addressed by clause 1126.  The ways specified for making an application for a visa of this class included that the application must be made in Australia, the applicant must be in Australia and that an application by a person claiming to be a member of the family unit of a person who is an applicant for a protection visa may be made at the same time and place as, and combined with, the application by that person.  The only subclass of protection visas established was subclass 866 (protection).

114                      Schedule 2 to the Regulations sets out the requirements in relations to the grant of visa subclasses.  As to the subclass 866 – protection (residence) visa, the primary criteria included the following criteria in clause 866.21 which was to be satisfied at the time of making the application:

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 application for a protection (Class AZ) visa.

115                      What was meant by "a member of the same family unit" was addressed by Reg 1.12.  That regulation provided:

(1)     Subject to subregulation (2), a person is a member of the family unit of another person (in this subregulation called "the family head") if the person is:

(a)       …; or

(b)       a dependent child of the family head or of a spouse of the family head; or

(c)        …; or

(d)       a relative of the family head or of a spouse of the family head who;

(i)        does not have a surviving spouse or any other relative (other than the family head) able to care for that relative in the relevant country; and

(ii)       is usually resident in the family head's household; and

(iii)      is dependent on the family head; or

(e)           …

116                      The definition of "family head" as it applied to applications for protection visas was modified by clause 866.112.  The primary visa applicant need not be the "family head" referred to in reg 1.12(1) and could for example be the "dependent child" of the other applicant.

117                      Clauses 866.211 to 866.226 set out the primary criteria to be satisfied at the time of making the decision whether to grant a protection visa and were as follows:

866.221           The Minister is satisfied that the applicant is a person to

                      whom Australia has protection obligations under the Refugees Convention.

866.222           In the case of an applicant referred to in paragraph 866.211 (b):

(a)          the Minister is satisfied that the applicant is a member of the same family unit as a person who has made specific claims under the Refugees Convention (a "claimant"); and

(b)          that claimant has been granted a Protection (Residence) visa.

866.223           …

866.224           …

866.225           …

866.226           The Minister is satisfied that the grant of the visa is in

                                    the national interest.

118                      The secondary criteria included that the applicant must have been in Australia (clause 866.411).

Relevant provisions of the Act as at the time of the making of a second protection visa application

119                      It is necessary to turn to a number of provisions of the Act as they stood when SZJOZ lodged a second protection visa application and as they stand now (the provisions will apply in relation to SZGME if a second protection visa application is made by her immediately) given that these provisions will bear on the issue of the proper construction of s 48A of the Act. 

120                      Subdivision AA of Division 3 of the Act dealt with applications for visas.  It included sections 45, 46, 47 and 48A.  Sections 45, 46 and 47 of the Act 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.

(2)       Without limiting subsection (1), the regulations may prescribe the way for making:

(a)                    An application in specified circumstances;

(b)        An application for a visa of a specified class; or

(c)        An application in specified circumstances for a visa of a                              specified class.

…

121                      Section 46 provided:

(1)        Subject to subsection (2), an application for a visa is valid if and only if:

(a)        it is for a visa of a class specified in the application; and

(b)        it is made in the way required by subsection 45(2)…

(ba)      …

(c)        …

(d)        it is not prevented by section 48 (visa refused or cancelled                           earlier), 48A (protection visa)…; and

(e)        ….

(2)        An application for a visa is also valid if:

(a)        it is an application for a visa of a class prescribed for the                             purposes of this subsection; and

(b)        under the regulations, the application is taken to have been                         validly made.

122                      Section 47 provided:

(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.

123                      Section 48A was in the following terms when SZJOZ lodged the second application for a protection visa and will be when SZGME lodges a second application if that is done immediately:

(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) …

 (2)       In this section:

            "application for a protection visa" includes:

(aa)     an application for a visa, a criterion for which is that the applicant is a non‑citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; and

(ab)     an application for a visa, a criterion for which is that the applicant is a non‑citizen in Australia who is the spouse or a dependant of a non‑citizen in Australia:

(i)        to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; and

 (ii)      who holds a protection visa; 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 .

124                      Subdivision AB of Div 3 of the Act was entitled "Code of procedure for dealing fairly, efficiently and quickly with visa applications".  It included sections 54 and 55.  Section 54 provided:

(1)       The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.

(2)       For the purposes of subsection (1), information is in an application if

            the information is:

(a)        set out in the application; or

(b)        in a document attached to the application when it is made; or

(c)        given under section 55.

(3)       Without limiting subsection (1), a decision to grant or refuse to grant

a visa may be made without giving the applicant an opportunity to make oral or written submissions.

125                      Section 55 provided:

(1)        Until the Minister has made a decision whether to grant or refuse to          grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.

(2)        Subsection (1) does not mean that the Minister is required to delay

making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information.

126                      Subdivision AC of Division 3 dealt with the grant of visas.  Section 65 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), 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.

(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).

127                      Section 69, which also was in Subdivision AC provided:

(1)        Non-compliance by the Minister with Subdivision AA or AB in relation

to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed.

(2)        If the Minister deals with a visa application in a way that complies with Subdivision AA, AB and this Subdivision, the Minister is not required to take any other action in dealing with it.

128                      Section 411 set out the decisions which are "RRT-reviewable decisions".  It provided:

(1)        Subject to subsection (2), the following decisions are RRT-reviewable                                  decisions:

(a)       a decision, made before 1 September 1994, that a non-citizen is not a refugee under the Refugees Convention as amended by the Refugees Protocol (other than such a decision made after a review by the Minister of an earlier decision that the person was not such a refugee);

(b)       a decision, made before 1 September 1994, to refuse to grant, or to cancel, a visa, or entry permit (within the meaning of this Act as in force immediately before that date), a criterion for which is that the applicant for it is a non-citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol (other than such a decision made under the Migration (Review) (1993) Regulations or under the repealed Part 2A of the Migration (Review) Regulations);

(c)        a decision to refuse to grant a protection visa;

(d)        a decision to cancel a protection visa.

(2)        The following decisions are not RRT-reviewable decisions:

(a)       decisions made in relation to a non-citizen who is not physically present in the migration zone when the decision is made;

(b)       decisions in relation to which the Minister has issued aconclusivecertificate under subsection (3).

(3)        …

129                      It can be seen from these provisions that in order to constitute a valid application for a protection visa, an applicant for a protection visa must have:

By virtue of s 46(1)(b) and s 45(2), complied with the requirements in the Regulations concerning the making of the application, including the requirement to have completed the form in accordance with any directions on it (Reg 2.07(1)(a) and (3)) and the requirement that the application have been made "at any office of Immigration in Australia" (Reg 2.10(1)(b)(i)); and

Not have been prevented from making an application by s 48A (s 46(1)(d)).

130                      If the application was valid, the Minister is obliged to consider it (s 47(1)), and is prevented from considering it if it was not valid (s 47(3)).  After considering a valid visa application, the Minister must grant the visa if satisfied the applicable criteria are met, and refuse to grant the visa if not so satisfied (s 65).

131                      It is convenient to consider, at this point, the decisions of the Full Federal Court in Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 and Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486.  Both authorities deal with the operation of certain provisions of the Act (but not s 48A) on an invalid visa application.  The visa applicant in each case had lodged an incomplete application for a protection visa with the Department in the sense that neither application included claims as to why the applicant was a refugee, and instead referred to a document to be provided later.  Accordingly, at the time each visa application was lodged, it was an invalid application.  The delegate in each case considered the application without having received the foreshadowed document and refused to grant a protection visa.  In each case, the applicant sought review of the delegate's decision by the Tribunal and provided the Tribunal with material in support of their claims.  In each case the Tribunal reviewed the decision and concluded that the applicant was not entitled to a protection visa. 

132                      It was common ground in Yilmaz that the original application to the delegate was invalid because the application did not comply with the statutory requirements (particularly Reg 2.07(3), which required an applicant to complete the form in accordance with any directions on it) and that the Minister was obliged by s 47(3) of the Act not to consider the application.  The majority (Gyles and Spender JJ, with Marshall J dissenting) held that the Tribunal had jurisdiction to entertain a review of the delegate's decision and to make the correct and preferable decision on the material before it.  Gyles J, with whom Spender J agreed, held that the Tribunal's jurisdiction to review the decision arose from the operation of s 69 on non-compliance with s 47(3), or alternatively, the principle that an administrative decision in fact made, even if the decision maker had no power to make the decision, is a decision for the purposes of statutory merits review (Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1).

133                      Central to the analysis of Gyles J was the proposition that if the promised statement had been provided to the Department before the delegate's decision was made "it would have either completed the application or cured the defect, whichever may be the correct analysis" (at [72]).  His Honour did not accept that the Regulations compelled the "unreasonable construction" that the application must be perfectly complete when lodged and concluded the Regulations did not compel such a construction (at [72]).  His Honour held that since an application could be completed by the supply of additional information before the delegate, there was no reason it could not take place in the course of review by the Tribunal (at [93]).  (See also Spender J at [19]-[24].)

134                      Justice Gyles considered the conflicting authorities concerning the consequences of a delegate having considered an invalid protection visa application.  Those authorities included two judgments of single judges, Li Wen Han v Minister for Immigration & Multicultural Affairs [2000] FCA 421 and Kundu v Minister & Multicultural Affairs [2000] FCA 560, the appeals from which formed the subject of the later Full Court judgment in Li.  Gyles J said (at [73]-[74], [79]):

In Phanouvong v Minister for Immigration & Multicultural Affairs [1999] 1489 Finn J held that material received by the RRT would cure deficiencies in an application in circumstances not distinguishable from the present.  In Minister for Immigration & Multicultural Affairs v A [(1999) 168 ALR 954]) Merkel J referred to, and implicitly agreed with, this decision.  However, Heerey J in Li Wen Han v Minister for Immigration & Multicultural Affairs and Lindgren J in Kundu v Minister & Multicultural Affairs [2000] FCA 560 have each taken a different view and refused to follow Finn J, although their reasoning is not identical.

Each of their Honours took the view that the decision of the delegate was a decision within the meaning of ss 411 and 412 of the Act for the purposes of review by the RRT.  Finn J held that s 69 applied.  Heerey J applied the principle in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1, namely, that an administrative decision which is legally ineffective or void may be susceptible to appeal.  Lindgren J seems to accept the application of s 69.

…

As I have said, each of Finn J, Heerey J and Lindgren J have held that an invalid decision is nonetheless a decision for the purposes of ss 411 and 412.  Heerey J and Lindgren J each held, however, that the RRT, in reviewing such a decision, is limited to holding that it was invalid, rather than reviewing it on the merits.  Finn J, on the contrary, held that as the RRT was validly seised of the matter, and, by s 415(1), was entitled to exercise all the powers and discretions that are conferred by the Act on the person who made the decision and come to the correct decision, it was entitled to consider the application as it stood at the time it was completed or perfected before it.

135                      The operation of s 69 was the focal point of the reasoning of Gyles J. In that matter the appellant contended that s 69 had no application, since the substantive decision could only be authorised by s 65 (which provides the Minister's powers "after considering a valid application…". (emphasis added)) and that section was not in the subdivisions (AA and AB) to which s 69 was expressed to apply.  The appellant relied on the judgments of Merkel and Finkelstein JJ in Minister for Immigration and Multicultural Affairs v A (1999) 168 ALR 594.  Gyles J did not accept that Minister v A established any binding principle concerning s 69, and in any event indicated that a proposition that s 69 did not apply to a decision by the Minister on an invalid application would be clearly wrong and should not be followed.  His Honour concluded (at [81]):

… It is thus clear that s 69 relieves against invalidity based upon a breach of s 47.  It is entirely reasonable that this should be so.  The Minister is bound not to consider an invalid application, and should not do so.  If the Minister does so, however, why should the applicant be penalised for, or affected by, the Minister's mistake?  If a visa has been granted, but the application had been invalid on some ground, it would be unreasonable to have it declared invalid in proceedings thereafter, when the remedy had been in the Minister's own hands at the time.  It might be assumed that a grant would not have been made without a proper basis in fact, leaving aside formal invalidity of the application.  The same principle should apply to refusal of the application if the deemed validity ensures a right to review on the merits.  Viewed in this way, s 69 prevents approbation and reprobation by the executive to the disadvantage of the applicant…

136                      It is plain his Honour concluded that by operation of s 69, a valid decision could be made by a delegate of the Minister even in relation to an invalid application, and that would be so for purposes beyond creating the foundation for review by the Tribunal. In relation to s 65, his Honour concluded that the words "after considering a valid application for a visa" were not preconditions for the exercise of the power but rather assumptions on which the section proceeded (at [83]). 

137                      I turn to consider the other Full Court decision in Li. The facts in the two appeals that formed the subject of the Full Court's judgment in Li can be briefly summarised.  In both cases, information was provided to the Tribunal which, in effect, outlined what were the claims for protection.  There was no suggestion that the material had ever been provided to the Department.  In both cases, the Tribunal dealt with the matter on the merits and affirmed the delegate's decision.

138                      Before the Full Court, Mr Li and Mr Kundu argued that Yilmaz had been wrongly decided and should not be followed.  In considering the majority's conclusion in Yilmaz, the Full Court emphasised that in Yilmaz the statement had in fact been provided to the Department, although after the delegate's decision has been made.  The Full Court said (at [69]):

In both Yilmaz and [Nader v Minister for Immigration and Multicultural Affairs [2000] FCA 908], the Court was concerned with a situation, either actual or hypothetical, where an applicant, who had lodged an incomplete Form 866 and who had promised additional information, subsequently forwarded a document containing that information to an office of Immigration (as defined by reg 1.03) before the decision making process had commenced.  In these circumstances, the view has been taken that the two documents (the Form 866 and the document containing the promised information) can be read together.  Accordingly, a valid application is taken to be lodged when the promised information is supplied.

139                      The Full Court went on to distinguish Yilmaz from the appeals before them (at [70]):

The circumstances in the present appeals are, of course, different because the information foreshadowed in each Form 866 was never supplied by the respondents to an office of Immigration.  Mr Li never provided the "ATTACHMENT" referred to in the incomplete Form 866.  Rather, he supplied a detailed submission to the RRT, in support of his application for review of the delegate's refusal to grant him a protection visa.  That submission did not purport to be the attachment omitted from the Form 866.  Most importantly, there is nothing to indicate that Mr Li's submission was ever forwarded to or received by the Department or, for that matter, by the Minister's delegate.  In Mr Kundu's case, the submission was forwarded by his agent to the RRT, not to the Department.  There is nothing to suggest that it was ever received at an office of the Department.

140                      The Full Court regarded reg 2.10(1)(b) as a regulation which prescribed "the way for making… an application in specified circumstances" for the purposes of s 45(2)(a) of the Act and that an application which did not comply with reg 2.10(1)(b) was invalid by operation of s 46(1)(b).  The Full Court also rejected the Minister's contention that the lodging of an incomplete application constituted the making of an application for the purposes of reg 2.10(1)(b), construing the word "application" in the regulation as a reference to a completed application form.  The Full Court held that there could not be a valid application, nor the making of an application, until the information necessary to complete the application was supplied to an office of Immigration, not the Tribunal.

141                      The Minister submitted that the delegate's decision was reviewable by the Tribunal, on either of the two bases that the majority had considered in Yilmaz, that is, either because the delegate had in fact refused to grant a protection visa even if the decision was invalid, or because s 69(1) preserved the validity of the delegate's decision at least for the purposes of review by the Tribunal.  On this question the Full Court said (at [80]):

The remaining arguments advanced by the Minister can be dealt with more briefly.  It can be accepted, for present purposes, that a decision of the Minister's delegate to reject an invalid application for a visa is subject to review by the RRT, notwithstanding that the delegate contravened s 47(3) of the Migration Act by making the decision. It can be accepted, for present purposes, that a decision of the Minister's delegate to reject an invalid application for a visa is subject to review by the RRT, not withstanding that the delegate contravened s 47(3) of the Migration Act by making the decision. It can also be accepted that this result comes about, at least on one view, because of s 69 of the Act. It is one thing, however, for a decision improperly made by a delegate to be saved from invalidity by s 69 so as to be subject to review by the RRT. It is another to conclude that the legislation evinces a policy that an incomplete application lodged with the Department should be taken as complying with reg 2.10(1)(b). It is difficult to see how s 69, whatever its scope, can affect the construction of reg 2.10(1)(b). 

142                      The Full Court went on to consider the Tribunal's powers on review as follows (at [81]-[82]):

… [I]t is difficult to see how s 415(1) of the Migration Act, can support a decision by the RRT on the merits, in circumstances where no valid application has ever been lodged.  Section 415(1) empowers the RRT, for the purposes of the review of a RRT-reviewable decision, to exercise all the powers and discretions that are conferred by the person who made the decision.  Yilmaz held that s 415(1) permitted the RRT to review, on the merits, a decision of the Minister's delegate where a valid application for a visa had been lodged, albeit after the date of the delegate's decision.  Yilmaz did not consider whether the RRT had jurisdiction to review on the merits a decision of the Minister's delegate where no valid application for a protection visa had ever been lodged.  Nor did Yilmaz consider whether reg 2.10(1)(b) would be satisfied if the information required to complete a Form 866 were supplied to the RRT, rather than to an office of Immigration.

It strains language to say that the powers which are conferred on the RRT for the purposes of the review of a RRT-reviewable decision include the power to receive essential components of the prescribed application form.  Regulation 2.10(1)(b) requires an application to be made at an office of Immigration in Australia.  That includes all essential components of the prescribed application form.  Section 415(4) of the Migration Act makes it clear that the RRT cannot make a decision not authorised by the Migration Act or the regulations.  A decision to refuse a visa where no valid application for a visa has been made is a decision not authorised by the Migration Act or the regulations.  The fact that the Migration Act preserves an unauthorised decision by a delegate, so as to make it subject to review by the RRT, does not confer on the RRT greater powers than a delegate could ever have properly exercised in relation to an invalid application.

143                      Yilmaz and Li were considered by a Full Court in Thayananthan v Minister for Immigration & Multicultural Affairs [2001] FCA 831.  In that case, the missing information was provided to the Department before the delegate's decision to refuse to grant a protection visa had been made.  The Full Court considered in some detail the reasons of each of the members of the Court in Yilmaz, noting in particular that Marshall J (in dissent) had taken a different view and did not consider it possible that an incomplete, and therefore invalid, application could become a valid application if the requisite information was later supplied

144                      Yilmaz and Li were subsequently considered by Bennett J in SZECD v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 53. In SZECD, the appellant had made a second application to the Department for a protection visa, on the basis that the first application had been invalid.  The first application had not included any information relating to the appellant's claims for protection and although it referred to "my statutory declaration", no such document was provided to the Department.  The Tribunal affirmed the delegate's decision, having received material from the appellant indicating, in substance, the appellant's claims to protection.  The appellant applied again, and a delegate refused to grant the visa.  It should be noted that the second delegate did not rely on s 48A to refuse to consider the second application.  The second delegate's decision was affirmed by a second Tribunal.  Pursuant to s 416 of the Act, the second Tribunal relied upon the first Tribunal's conclusions regarding the material which the second Tribunal also had before it.  Section 416 provided:

 If a non-citizen who has made:

(a)       an application for review of an RRT-reviewable decision that has been determined by the Tribunal or the Administrative Appeals Tribunal; or

(b)       applications for reviews of RRT-reviewable decisions that have been determined by the Tribunal or the Administrative Appeals Tribunal;

makes a further application for review of an RRT-reviewable decision, the Tribunal, in considering the further application:

(c)        is not required to consider 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 Tribunal or the Administrative Appeals Tribunal made about or because of that information.

145                      The appellant in SZECD contended that the second Tribunal had not been entitled to rely on the first Tribunal's findings pursuant to s 416 of the Act because the first visa application had been invalid, since it had not included any specific claims for protection.  The first Tribunal therefore had no authority to make the decision.  Bennett J considered the authorities, including Yilmaz and Li as well as subsequent cases, concerning the effect of supplying additional information to the Tribunal.  Her Honour observed that the Full Court in Thayananthan, while noting the decision in Li, had followed the decision in Yilmaz.  Her Honour said at [25]-[26]:

Yilmaz and the cases which have followed it concerned circumstances where the visa application was valid by the time it was considered by the Tribunal but invalid at the time of consideration by the delegate.  Li determined that the application does not become valid if the additional material is submitted to the Tribunal and not to the Department.  However, Gyles J in Yilmaz specifically referred to that situation and drew no distinction.  The respondent relies also upon Zubair [Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344] which followed Yilmaz (to which I would add Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314 and Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218).  They are authority for the proposition that a decision of the delegate, invalid for its examination of an application that is invalid due to failure to comply with the requirements of the Act, is a decision capable of being reviewed by the Tribunal.  The defects are "cured" upon merits review.  The Court in Ahmed and in Zubair endorsed the application of the principles in Lawlor.

The weight of authority supports the approach of Yilmaz, that is that missing information can complete an invalid application when submitted to the Department or to the Tribunal.  A delegate's decision, which involved consideration of an invalid application, is an "RRT-reviewable" decision.

146                      Her Honour held, on the basis of Yilmaz and decisions in which it had been applied, that the first Tribunal had jurisdiction to review the first delegate's decision.  Given that the first Tribunal's decision was valid, the second Tribunal was entitled to rely upon s 416 in the way it did. 

147                      Section 48A of the Act establishes a regime, the effect of which is that a non-citizen who has previously "made an application for a protection visa, where the grant of the visa has been refused", is prevented from making a further application while the non-citizen is in the migration zone.  There has been little consideration of the proper construction of s 48A, and in particular, whether s 48A only applies where there has been a refusal by a delegate of a valid, as opposed to invalid, protection visa application.  The ratios in Yilmaz and Li do not, in my opinion, dictate a particular construction of s 48A in the circumstances arising in these appeals.  It should be noted that in Li, the Full Court (at [87]) invited the parties to make submissions as to the impact of s 48A on any future application by the appellant in that case.  However, in its supplementary reasons for judgment: Minister for Immigration & Multicultural Affairs v Li [2000] FCA 1692, which dealt mainly with the issue of costs, the Full Court declined to consider the operation of s 48A, notwithstanding the submission made by the appellant that the Court should make an order declaring that "for the purposes of s 48A of the Act, the [r]espondent has not made an application for a protection visa which has been refused".  In refusing to make this order, the Full Court said (at [7]): 

In these circumstances, it would be inappropriate for this Full Court to pre-empt a finding on the application of s 48A of the Act where no issue concerning the application of that section has arisen on appeal. 

148                      I turn now to consider the terms of s 48A.  The first thing to be noted about the section is that its operation is not confined,  in terms, to circumstances where the application made was a valid, rather than invalid, application.  Sub-section 48A(1) is expressed in par (a) to apply to "an application for a protection visa, which has been refused", and, "applications", plural, in par (b), which might readily be thought to comprehend both valid and invalid applications.  Both are applications.  What the section appears to make significant is that the application has been considered and refused, regardless of whether the application is defective in some way such which renders it invalid by operation of s 46 of the Act.

149                      Support for this construction is found elsewhere in the subsection, namely the concluding words of s 48A(1) which create the prohibition which prevents "[the making of] a further application for a protection visa".  It is, in my opinion, unlikely that the prohibition created by the subsection on making "a further application" was intended to be a prohibition on making a valid application only.  It is more likely that Parliament intended to prevent a person who had unsuccessfully applied for a protection visa (in the sense of having made an application which was considered and refused), from making a further application whether, when analysed, it was a valid application or an invalid application.  Conceivably the prohibition created by the subsection was only on making a valid application, thereby creating the consequential obligation on the Minister or his or her delegate to consider it, imposed by s 47(1).  However, it is more likely that the prohibition was cast more widely so as to prevent any application, whether valid or invalid, being made and thus relieving the Minister or his delegate from beginning the administrative process of evaluating whether the application was valid or invalid. 

150                      Indeed, it would be curious if the prohibition in s 48A was only on making a valid application, enabling an applicant (whose earlier application had been considered and refused) from making what, in effect, would be vexatious applications (in the sense that they were doomed to fail if the Act was applied and the Minister refused to consider it in accordance with the direction in s 47(3)) by making invalid applications.  On this approach, the expression "an application" would be given a consistent meaning in the section, reflecting a general principle of statutory construction: see Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452.  It would be treated as a reference to any application, whether valid or not, provided the previous application was an ‘application for a protection visa' as defined in s 48A(2).

151                      Further support for the view that any application, whether an invalid or valid application, engages s 48A(1) if it results in a refusal to grant the visa, is found in s 69.  The effect of that section is that if the Minister or his delegate considers an invalid application, contrary to the direction in s 47(3), and refuses (or grants) the visa, it is nonetheless a valid decision by operation of s 69.  So much was decided by Gyles (with Spender J agreeing) in Yilmaz.  It is true that the Full Court in Li said at [80] to [82] (see [41] to [42] above) that s 69 did not authorise the Tribunal to review a decision flowing from an invalid application. However the reasoning of the Full Court was not based on a view that s 69 was ineffective to render valid, for any purpose, a decision to refuse or grant a visa in circumstances where the application was an invalid one. The Full Court's reasoning concerned only the interaction between s 69 and s 415.

152                      It is true that the reasoning of the Full Court in Li would, if applied in the present appeals, mean that the decisions of the Tribunal in both instances were not authorised by the Act.  Both were decisions to affirm the decision of the delegate.  However s 48A is engaged if the Minister or a delegate refuses, on application, to grant a protection visa.  Generally, a decision, in administrative review proceedings, to affirm a decision does not displace the initial decision as the operative legal decision, at least in the sense that the general law does not compel a conclusion to the contrary: see Darling Downs Bacon Co-operative Association Ltd v Comptroller-General of Customs (1994) 50 FCR 435 at 439-440 and the discussion of Re Gee and Director-General of Social Services (1981) FLR 347.  Much will depend upon the particular provisions of the legislation regarding the power of the review body and the consequences of its exercise. 

153                      In the legislative regime established by the Act, it is relatively clear that a decision by the Tribunal to affirm the delegate's decision does not supplant the decision of the delegate.  So much can be gleaned from the terms of s 415, which sets out the powers of the Tribunal on review.  Subsection 415(2) sets out the various powers on review as, relevantly, being to affirm, vary or set aside the decision and substitute a new decision.  However, s 415(3) provides that if the Tribunal varies the decision or sets aside the decision and substitutes a new one, the Tribunal's decision is taken to be the decision of the Minister.  This supports the view that in affirming the Minister's decision, the Tribunal's decision does not become the legally operative decision.

154                      I now turn to consider each appeal.

SZJOZ

155                      The case below proceeded by way of an agreed statement of facts, which in summary was as follows. 

First protection visa application

156                      The appellant arrived in Australia on 2 October 1996 on a false Hong Kong travel document.  On 2 December 1996, the Department received his application for a protection visa.  The first application did not contain any details in support of the applicant's claim to be a refugee, and although it stated that "My personal statement will be providing later", no such statement was provided to the Department.  On 7 March 1997, a delegate of the Minister refused to grant the visa. 

Review by the Refugee Review Tribunal

157                      The appellant sought review of the delegate's decision in the Tribunal and detailed his claims both in writing and orally at the hearing.  On 14 April 1998, the Tribunal affirmed the delegate's decision.

158                      By letter dated 1 May 1998, the appellant asked the Minister to exercise the discretion under s 417 to substitute a more favourable decision for that of the Tribunal.  The appellant was advised by letter dated 30 October 1998 that the Minister had declined to exercise the power.  The appellant had no further contact with the Department until 2006.

Second protection visa application

159                      On 21 June 2006, the appellant lodged a second application for a protection visa, containing details of his claims to be a refugee.  By letter dated 10 August 2006, an officer of the Department advised the applicant, through his migration agent, that:

The Protection visa application lodged by [the applicant] on 27 November 1996 is considered to be a valid application.  This application was refused by the delegate on 7 March 1997 and the decision was affirmed by the RRT on 14 April 1998.  [The applicant] is therefore prevented under s 48A of the Migration Act from making another Protection visa application while in the migration zone.

[The applicant's] claims will be considered against the guidelines for purported further applications for a Protection visa subject to s48A and request for Ministerial intervention under s48B to determine whether his case will be referred to the Minister for consideration under s 48B.

Application for judicial review in the Federal Magistrates Court in relation to the second protection visa application

160                      On 27 October 2006, the appellant filed an application in the Federal Magistrates Court seeking an extension of time in which to file an application for a remedy in the Court's original jurisdiction under s 476 of the Act in relation to the decision of 10 August 2006: SZJOZ  v Minister for Immigration [2007] FMCA 335.

161                      The appellant was represented by counsel and solicitors.  The appellant contended that the Minister made an error of law in treating the earlier visa application as a valid application under the Act and by reason of that error, failed or refused to exercise jurisdiction.  The Minister argued that the first visa application was a valid application because the appellant had made claims before the Tribunal which were considered and determined by it.  Any defect in the first visa application was cured by the Tribunal's consideration and determination of the applicant's claims.  The Minister relied on the Full Court's judgment in Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 and SZECD v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 53.

162                      The Federal Magistrate noted that the first visa application had not complied with the regulations, in particular because the application was not made at an office of Immigration Australia (reg 2.10(1)(b)).  Her Honour further noted that failure to comply with the regulations was fatal to the validity of an application, applying Li.

163                      Her Honour then discussed the authorities, namely the Full Court's judgments in Li and Yilmaz, and the judgment of Bennett J in SZCED, at [25] to [35].  Her Honour distinguished both Yilmaz and SZCED, concluding that neither case was directly applicable.  Her Honour said that the majority of the Full Court in Yilmaz had not considered the effect of a failure of a visa application to comply with the requirements in reg 2.10(1)(b), whereas the Full Court in Li had considered its effect.  Her Honour concluded, on the basis of Li, that compliance with reg 2.10(1)(b) was mandatory before a valid application was lodged.  Her Honour concluded that the first visa application was not a valid application, s 48A did not apply and the delegate's refusal to consider the second application by invoking s 48A was wrong.

164                      The Federal Magistrate then considered whether time should be extended under s 477(2).  Although the application was not brought within the 28 day time limit prescribed by s 477(1) of the Act, the Court was empowered to extend time under s 477(2) because the application for an extension was made within 84 days of the actual notification of the decision. 

165                      Her Honour refused to extend time on the basis that she was not satisfied that it was in the interests of justice to do so.  Her Honour considered a range of factors, including the serious consequence of a refusal by the Court to grant discretionary relief.  However, her Honour was influenced by the appellant's conduct prior to lodging the second visa application and in relation to the first visa application, and the fact that he had not taken steps in eight years to contact the Department in relation to his visa status or to correct information it held about him.  Her Honour had particular regard to the provision of false information to the Department in connection with the first application and the lack of steps taken to correct the information the Department held about him or to check his visa status in the eight years following the Tribunal's decision.  Her Honour also considered that the second visa application did not contain any additional claims not considered already by the Tribunal in 1998.

Result in SZJOZ

166                      Applying the reasoning set out at [148] – [153] above, it is tolerably clear that the delegate was correct in refusing to entertain the second application for a protection visa having regard to the unsuccessful application SZJOZ had earlier made for a protection visa.  The definition of "an application for a protection visa" in paragraph s 48A(2)(aa) applied to the first visa application even though the application to the Department was invalid.  The application had been considered and refused.  Her Honour's conclusion that s 48A did not apply to the second visa application because the first visa application was invalid was erroneous.  The preferable cause is to refuse leave to appeal from the Federal Magistrate's decision to refuse to extend time, on the basis that any appeal from the Federal Magistrate's decision not to extend time would be futile: see Decor Corporation Pty Ltd and Anor v Dart Industries Inc (1991) 33 FCR 397 at 398-400.

SZGME

Application for a protection visa

167                      On 25 November 1996, an application for a protection visa was lodged.  It was completed in a way that created some ambiguity as to who was claiming that Australia owed them protection obligations, the appellant, her husband ("the husband") and their daughter ("the daughter") or only their daughter.  The application form used was described as a form 866B.  The daughter was listed as the first applicant, the husband as the second applicant and the appellant (the mother) as the third applicant.  All three signed the form.  The daughter indicated that she had her own claims to be a refugee, whereas the parents answered "no" to a question whether they had their own claims.  The form indicated that where an applicant had his or her own claims, form 866C was to be completed, whereas if an applicant that did not have his or her own claims, form 866D was to be completed.  The daughter lodged a form 866C (which is headed "Application for an applicant who wishes to submit their own claims to be a refugee"), at the same time as the visa application.  In response to questions 36 to 40 which concern claims for protection, the daughter's form 866C provided "STATEMENT TO BE [ILLEGIBLE]". 

168                      By letter dated 3 February 1997, the Department wrote to the daughter acknowledging receipt of her application.  In March 1997, a migration agent provided the Department with a one page statement setting out what it described as the "overwhelming case for their refugee status".  The statement was signed by the daughter, the appellant and her husband and purported to be on behalf of all of them.  By letter dated 1 May 1997, the Department wrote to the daughter, advising that it appeared that her parents had their own claims for refugee status and that they would need to complete a form 866C or, if they did not have their own claims, should fill out a form 866D.  Neither form was provided to the Department.

169                      On 19 June 1997, a delegate determined what the delegate considered to be the daughter's application.  The delegate assessed the claims of the daughter and concluded that she not entitled to a protection visa.  The delegate noted that the parents had not made their own specific claims and concluded that because the daughter had not been granted a protection visa, the appellant and her husband were also not entitled to a protection visa. 

Review by the Refugee Review Tribunal

170                      On 23 June 1997, the daughter applied to the Tribunal for a review of the delegate's decision.  Both parents were included in the application for review.  By letter dated 28 June 1997, a migration agent wrote to the Tribunal.  The letter stated that the form 866C of the parents did not reach the Department in time and asked the Tribunal to take its content into account.  It enclosed a statement of the daughter signed by all three appellants, and a form 866C on behalf of each of the appellant and her husband in which they provided information about their own claims to be a refugee.

171                      The application was heard by the Tribunal on 8 October 1997.  All three gave evidence before the Tribunal.  On 20 October 1997, the Tribunal affirmed the delegate's decision.  Although the Tribunal noted that the fate of the applications of the appellant and her husband depended upon the outcome of the daughter's application, it nevertheless went on to independently assess the parents' claims, it purported to determine separate claims on behalf of the appellant and her husband as well as their daughter, and made separate findings in relation to each.  The Tribunal was not satisfied that any of them had a well founded fear of persecution for any Convention reason.

172                      The appeal book contains forms 866C completed by the appellant and her husband which are signed and dated 3 June 1997, which was before the delegate's decision.  However, it appears to be common ground that the two forms 866C were never given to the Department. 

Application for judicial review in the Federal Magistrate's Court

173                      The appellant applied for judicial review of the Tribunal's decision in the Federal Magistrates Court, seeking relief in the form of constitutional writs against the Tribunal (see SZGME v Minister for Immigration & Anor [2007] FMCA 178).  The daughter and husband were not joined as applicants.  In the amended application, the appellant contended, firstly, that her visa application to the Department had been invalid because she had not provided either a form 866C or form 866D to the office of Immigration.  The delegate was therefore not authorised to consider and make a decision on her application other than to treat it as invalid because of s 47 of the Act.  Secondly, the appellant contended that the Tribunal had constructively failed to exercise its jurisdiction or acted in excess of its jurisdiction under the Act.  One of the ways in which this ground was particularised was that the Tribunal did not have jurisdiction to affirm the delegate's decision because the visa application had been invalid.  Other claims of error on the part of the Tribunal were also made but were unrelated to the validity issue.

174                      His Honour accepted the Minister's contention that he was bound by the decision in SZECD, with the result that the matter should not be approached on the basis that the original visa application was invalid.  His Honour dismissed the application.  His Honour did not address the issue of whether s 48A of the Act would apply to any subsequent application brought by the appellant.  

175                      On 9 May 2007, a judge of this Court, Cowdroy J, granted the appellant an extension of time in which to appeal from the Federal Magistrate's judgment.

Result in SZGME

176                      During the course of the hearing of this appeal, it became apparent that the appellant has brought these proceedings to enable her to clarify her rights concerning the operation of s 48A should she lodge a protection visa application.  A declaration was sought. The fact that the declaration concerns future conduct does not preclude, as a matter of jurisdiction, it being made: see Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 356.  No issue was raised about whether such a declaration could be made in this Court's appellate jurisdiction.

177                      A convenient starting point is to consider whether she has ever made an application for a visa thereby potentially engaging s 48A.  Section 48A(2) addresses what is an application for a protection visa .  It provides:

(aa)      an application for a visa, a criterion for which is that the applicant is a non‑citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; and

(ab)      an application for a visa, a criterion for which is that the applicant is a non‑citizen in Australia who is the spouse or a dependant of a non‑citizen in Australia:

(i)        to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; and

 (ii)      who holds a protection visa; 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 .

178                      The issue of whether a person who has been part of an application for a protection visa on the basis of being a member of the family unit of an applicant is prevented, by virtue of section 48A(1), from making a an application for a protection visa in his or her right, was initially considered by the Full Court of the Federal Court in Dranichnikov v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 397 and in Soondur v Minister for Immigration & Multicultural Affairs  (2002) 12 FCR 578.

179                      In Dranichnikov, the appellant, her husband and their nine year old daughter, entered Australia on tourist visas in January 1997.  In April 1997 an application for a protection visa (866) in the prescribed form was lodged with the Department. The applicants were first, the appellant's husband, who claimed to be entitled to a protection visa on the ground that he was a person to whom Australia had protection obligations under the Convention, second, the appellant, who claimed to be entitled to a protection visa as a member of her husband's family unit and last, the daughter of the appellant and her husband, who also claimed to be entitled to a protection visa as a member of her father's family unit.  In May 1997, the original application was refused, and inAugust 2000, the appellant attempted to lodge a further application for a protection visa in which she made a specific claim to be entitled to a protection visa in her own right as a refugee.  This application was not accepted by the Department on the ground that the appellant was prevented from making a further application for a protection visa without the permission of the Minister because she had already made such an application by the original application.

180                      In allowing the appeal, 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 as the section stood at the time the appellant made the application in her own right.  The Full Court's approach was based on an analysis of s 36(2) of the Act, which provided that:

[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 Refuges Protocol."

The Court went on to say (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.

181                      The Full Court also referred to Part A of form 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…

182                      The approach in Dranichnikov was approved by the Full Court in Soondur (Gray and Goldberg JJ, Carr J dissenting).  As Gray J stated (at [34]):

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 … 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.

183                      However as noted in the preceding passage, following the Court's decision in Dranichnikov, s 36(2) was amended by the Migration Legislation Amendment Act (No. 6) 2001 (Cth), and it now reads:

A criterion for a protection visa is that the applicant for the visa is:

(a)     a non‑citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(b)     a non‑citizen in Australia who is the spouse or a dependant of a non‑citizen who:

(i)           is mentioned in paragraph (a); and

(ii)          holds a protection visa.

184                      Section 48A was also amended by inserting (relevantly) s 48A(2)(aa) and s 48A(2)(ab) into the definition of "application for a protection visa".  According to the Explanatory Memorandum,  the effect of the amendment, which commenced operation on 1 October 2001:

…[was]to 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.

185                      The appellant seeks an order setting aside the Tribunal's decision but does not challenge the delegate's decision.  As noted earlier, these proceedings are brought to secure the appellant's right to make an application for a protection visa unconstrained by s 48A.  On the view I take of the operation of that section, it is sufficient that the delegate refused an application made by the appellant of the type comprehended by s 48A(2).  The appellant made such an application which was refused.  The better view of the application lodged (and this is the way it was understood by the delegate) is that the appellant's daughter can be taken to have made the application on the footing that it was only she who alleged Australia owed her protection obligations.  Nonetheless the application was advanced on the basis that appellant was included as a dependent member of the same family unit, would satisfy a criterion for a protection visa because she possessed those characteristics, and would be granted a protection visa if the daughter was granted one.  That circumstance is comprehended by s 48A(2)(ab).

186                      Even if this analysis is wrong it is nonetheless the case that the appellant made an application for a protection visa which was refused.  The definition in s 48A(2) is not exhaustive and, in my opinion, the expression "application for a protection visa" in s 48A(1) was intended to comprehend an application for a protection visa, even if the application does not make clear the factual or legal basis on which it is claimed the criterion in that section will be met.

187                      The appeal should be dismissed with costs.

Associate:

Dated:         30 May 2008