FEDERAL COURT OF AUSTRALIA

SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia) made on 3 April 2013 be set aside.

3.    The respondent consider and determine the application for a protection visa lodged by the appellant on 10 October 2012 according to law.

4.    The respondent’s notice of contention be dismissed.

5.    The respondent pay the appellant’s costs of the proceedings in the Federal Magistrates Court below and of the appeal.

THE COURT DECLARES THAT:

1.    The application for a protection visa lodged by the appellant on 10 October 2012 was not invalid under s 48A of the Migration Act 1958 (Cth).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The central issue is whether, following certain amendments to the Migration Act 1958 (Cth) (the Act) which commenced on 24 March 2012, the appellant is entitled to apply in the migration zone for a protection visa based on complementary protection grounds in circumstances where an earlier application by him for a protection visa based on the Refugees Convention as amended by the Refugees Protocol had been refused. The issue turns primarily on the proper construction of s 48A and, to a lesser extent, s 36(2) of the Act.

Summary of background facts

2    The appellant is a citizen of Bangladesh who entered Australia on 24 January 1996 and has remained in this country since that date. On 11 March 2005, the appellant applied for a protection visa, claiming to be a refugee who feared for his safety if returned to Bangladesh. In particular, he relied in that application upon his conversion to Christianity after his arrival in Australia.

3    On 18 March 2005, the appellant’s application for a protection visa was refused by a delegate of the respondent (the Minister), principally on the ground that s 91R(3) of the Act required the delegate to disregard the appellant’s conversion to Christianity in Australia. Section 91R(3) of the Act provides:

For the purposes of the application of this Act and the regulations to a particular person:

(a)    in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

disregard any conduct engaged in by the person in Australia unless:

(b)    the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

4    The delegate recorded:

I have accordingly, disregarded the conduct of the applicant’s conversion to Christianity here in Australia. The applicant was unable to satisfy me that the conduct was not engaged otherwise than for the purpose of strengthening his claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

5    In March 2005, the appellant applied to the Refugee Review Tribunal (the RRT) established under the Act for review of the delegate’s decision. On 22 April 2005, the RRT also rejected the appellant’s application for a protection visa. It did so on a number of grounds.

6    The RRT found at page 19 of its “decision record” that the appellant’s claims lacked credibility and that he was an unreliable witness. The RRT found that, contrary to the appellant’s claims before it, he had:

never been subject to past persecution in Bangladesh or Australia, for reason of his religion, political opinion or for any other reason. It does not have before it any credible material to indicate that he faces a real chance of being subject to persecution for these or any other reasons in Bangladesh.

7    Upon rejection of his application for a protection visa the appellant became subject to a prohibition imposed by the Act which had the effect of preventing him from making a further application for a protection visa unless permitted by the Minister under s 48B of the Act to make such an application in the public interest.

8    On numerous occasions between August 2005 and January 2012 the appellant applied in writing to the Minister asking that he be permitted to make a further application for a protection visa or that the Minister, in the exercise of a further discretion under s 417 of the Act, substitute a more favourable decision on his application for a protection visa than that of the RRT. Each of those requests was rejected. During this period the appellant remained in Australia while his requests received consideration.

9    On 10 October 2012, Parish Patience Immigration Lawyers made an application on behalf of the appellant relying on new matters. The application was for a protection visa based on complementary protection grounds relying on s 36(2)(aa) of the Act which was introduced with effect from 24 March 2012 (see the Migration Amendment (Complementary Protection) Act 2011 (Cth) (the Amending Act)). Section 36(2)(aa) effectively added a new type of protection visa to the list already set out in s 36. The new type of protection visa was described by reference to the criterion that the Minister was satisfied that Australia owed protection obligations to the applicant for the visa on what can broadly be described as complementary protection grounds. The full terms of s 36(1) and (2) as applying after the commencement of the Amending Act and a subsequent minor amendment are set out in [18] below.

10    Section 48A of the Act prohibits an application for a protection visa by a non-citizen in the migration zone where an earlier application for such a visa has been made while in the migration zone and refused. Prior to the Amending Act, s 48A(2) provided a definition of an “application for a protection visa”, which notably omitted any reference to an application for a protection visa based on a criterion relating to complementary protection grounds. That was because that concept was only introduced into the Act from 24 March 2012 by the Amending Act (the terms of s 48A(2) immediately prior to the Amending Act are set out in [36] below). From 24 March 2012, s 48A(2) was amended in a way which relevantly added to the definition in s 48A(2) of an “application for a protection visa” the new criteria added to s 36(2), including the criterion relating to complementary protection set out in s 36(2)(aa). The relevant terms of s 48A(1) and (2) after the Amending Act are set out in [23] below.

11    The prohibition imposed by s 48A is subject to s 48B. Section 48B of the Act gives the Minister a discretion to determine that s 48A does not apply to prevent a further application for a protection visa in an individual case. Relying upon the view that the operation of s 48A prevented the further application by the appellant for a protection visa (unless the Minister exercised his discretion under s 48B), an officer of the Department of Immigration and Citizenship informed the appellant on 10 October 2012 that his application lodged on that date was not valid but would be considered as a request for the Minister to exercise his public interest power under s 48B of the Migration Act to permit a further application for a protection visa.

12    The following day, 11 October 2012, the applicant’s lawyers filed an application in the Federal Magistrates Court of Australia (the FMCA) (now the Federal Circuit Court of Australia) seeking judicial review of the decision that the appellant’s most recent application for a protection visa was not valid. In a judgment delivered on 3 April 2013 (SZGIZ v Minister for Immigration [2013] FMCA 215) the FMCA dealt with the application for judicial review and, for reasons which were extensively expressed, dismissed the application. The FMCA effectively accepted the Minister’s construction of the relevant legislation as operating to preclude the appellant from making a further application for a protection visa based on complementary protection grounds because he had made a previous unsuccessful application for a protection visa based on the Refugees Convention as amended by the Refugees Protocol.

13    From that judgment the appellant has appealed to this Court. The Chief Justice directed that the appeal be heard by a Full Court.

14    The appellant’s contention is that s 48A does not, upon its proper construction, operate to invalidate his most recent application for a protection visa. The argument was presented at various levels of sophistication and technicality, not all of which require detailed analysis. That is because, for the following reasons, the basic premise should be accepted.

Outline of relevant statutory provisions

15    It is convenient to set out the terms of the relevant provisions of the Act which were in force at the time of the appellant’s second application for a protection visa.

16    Under s 29(1), the Minister is empowered, subject to the Act, to grant a non-citizen permission – to be known as a visa – to travel to, enter and remain in Australia.

17    Section 31 deals with classes of visas. That provision is in the following terms:

31    Classes of visa

(1)    There are to be prescribed classes of visas.

(2)    As well as the prescribed classes, there are the classes provided for by sections 32, 33, 34, 35, 36, 37, 37A, 38, 38A and 38B.

(3)    The regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 32, 36, 37, 37A or 38B but not by section 33, 34, 35, 38 or 38A).

(4)    The regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both.

(5)    A visa is a visa of a particular class if this Act or the regulations specify that it is a visa of that class.

18    One of the sections referred to in s 31(2) is s 36. As noted above, s 36 deals with protection visas. After the commencement of the Amending Act, the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth) made an amendment to s 36(2)(a) and (aa), changing the word “to” to “in respect of”. There was no debate as to the significance or otherwise of that linguistic change. It may, perhaps, be seen to deal with what Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ called a “false but legislatively required step” of assuming the protection obligations are owed to individuals claiming protection, rather than to other Contracting States: NAGV and NAGW of 2000 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6; 222 CLR 161 at 172 [27]. This amendment commenced on 18 August 2012. Following the commencement of the Amending Act and a subsequent minor amendment, the terms of s 36(1) and (2) as they applied to the appellant’s protection visa application lodged on 10 October 2012 were (and remain) as follows:

36    Protection visas

(1)    There is a class of visas to be known as protection visas.

        Note: See also Subdivision AL.

(2)    A criterion for a protection visa is that the applicant for the visa is:

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

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

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

    (ii)    holds a protection visa; or

(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

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

    (ii)    holds a protection visa.

19    The phrase “significant harm” in s 36(2)(aa) is elucidated by s 36(2A) which is as follows:

(2A)    A non citizen will suffer significant harm if:

(a)    the non citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non citizen; or

(c)    the non citizen will be subjected to torture; or

(d)    the non citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non citizen will be subjected to degrading treatment or punishment.

20    The expression of the matters in respect of which complementary protection is to be afforded derives from Australia’s non-refoulement obligations under the International Covenant on Civil and Political Rights, the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty, the Convention on the Rights of the Child and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

21    Prior to the Amending Act, the only two possible criteria for a protection visa were those stated in s 36(2)(a) and (b) which, after the Amending Act and the subsequent minor amendment, continued to appear in the same terms. The Amending Act introduced s 36(2)(aa) and s 36(2)(c). The appellant’s previous application for a protection visa in 2005 relied upon the criterion stated in s 36(2)(a). His application in October 2012 relied on s 36(2)(aa), a criterion on which the appellant had not previously relied. As noted above, that criterion only became available on and from 24 March 2012.

22    The Note to s 36(1) refers to subdivision AL, which contains other provisions about protection visas, some of which apply only to refugee based protection visas, while other provisions, such as s 91W, apply to any protection visa, including one based on complementary protection.

23    Subdivision A of Division 3 of Part 2 of the Act deals with applications for visas. In subdivision AA, section 45 provides that, subject to the Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class. Section 46 describes what constitutes a valid visa application. Section 47 requires the Minister to consider a valid application for a visa.

24    Section 48A is important. Following commencement of the Amending Act, ss 48A(1) and (2) (as they applied to the appellant’s second application for a protection visa) were (and remain) relevantly in the following terms:

48A(1)    Subject to section 48B, a non-citizen who, while in the migration zone, has made:

    (a)    an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or

    …

    may not make a further application for a protection visa while in the migration zone.

…

48A(2)    In this section:

    application for a protection visa includes:

    (aa)    an application for a visa, a criterion for which is mentioned in paragraph 36(2)(a), (aa), (b) or (c); and

    (a)    an application for a visa, or entry permit (within the meaning of this Act as in force immediately before 1 September 1994), a criterion for which is that the applicant is a non-citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol; and

    (b)    an application for a decision that a non-citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; and

    (c)    an application covered by paragraph (a) or (b) that is also covered by section 39 of the Migration Reform Act 1992.

25    Item 35 of Schedule 1 to the Amending Act provided that the amendments made by that Schedule apply in relation to an application for a protection visa within the meaning of the Act that is made on or after the day on which this Item commenced (i.e. 24 March 2012).

26    Section 50 of the Act deals with a situation where a non-citizen makes a fresh application for a protection visa. In those circumstances the Minister is not required to reconsider any information considered in the earlier application.

27    Section 65 deals with the Minister’s power to grant a visa. Its effect is that, after considering a valid application for a visa, the Minister is to grant a visa if the Minister is satisfied that the health criteria and any other criteria prescribed by the Act or the regulations in relation to the visa have been satisfied.

Consideration

28    Protection visas constitute a class of visas by reason of the operation of s 36(1) of the Act. Were it not for the terms of s 48A(2) of the Act it is highly arguable that s 48A(1) would have the effect (for which the Minister contends) that an unsuccessful prior application for a visa of that class (i.e. a protection visa) would block any further application for a visa of that class while an applicant remained in the migration zone (as the appellant does). However, s 48A(1) must be read in conjunction with the definition in s 48A(2) of “application for a protection visa”. In the Court’s view, that produces a different result.

29    When the statutory direction as to the meaning of the term “application for a protection visa” is taken into account in the circumstances of the present case, s 48A(1) must be read (relevantly) as follows:

48A    (1)    Subject to section 48B, a non-citizen who, while in the migration zone, has made:

        (a)    an application for a visa, a criterion for which is mentioned in paragraph 36(2)(a), (aa), (b) or (c), where the grant of the visa has been refused (whether or not the application has been finally determined);

        …

        may not make a further application for a visa, a criterion for which is mentioned in paragraph 36(2)(a), (aa), (b) or (c) while in the migration zone.

(Italics and emphasis both added).

30    We say “read (relevantly)” above because the definition in s 48A(2) uses the word “includes”. We deal more fully with the Minister’s arguments on the significance of that word later. For present purposes, its presence makes the reading in of the definition into the text slightly clumsy. That lack of textual comfort must be addressed in a process of construction dealing with linguistic, logical or grammatical infelicities: Commissioner of Police v Kennedy [2007] NSWCA 328 at [44]. As to the general approach to definitions, see Kelly v The Queen [2004] HCA 12; 218 CLR 216 at 253 [103] per McHugh J; and Hastings Co-operative Ltd v Port Macquarie Hastings Council [2009] NSWCA 400; 157 LGERA 152 at 157 [16]-[17].

31    This process of construction permits the relevant part of the definition (in para (aa)) to be read into the operative provision (s 48A(1)) in order to give it contextual and linguistic sense. The other applications referred to in s 48A(2)(a), (b) and (c) take their meaning and context from earlier operative regimes for refugee protection under the Act. The only current applications for a protection visa are those criteria for which are mentioned in s 36(2)(a), (aa), (b) and (c).

32    When the statutory direction in s 48A(2) is taken into account, the proper effect to be given to the term “further” is that it refers to an application relying upon the same criterion as an earlier application.

33    Upon this construction, the application lodged on 10 October 2012 was not invalid and the FMCA was in error to hold that it was.

34    As Gageler J stated recently in Maloney v The Queen [2013] HCA 28 at [324]:

The construction of a statutory provision begins and ends with its text – read always in context. The context of [a statutory provision] critically includes its legislative purpose.

The primary textual matters which support the Court’s construction are as follows.

35    First, the structure of the definition provision in s 48A(2), defines “an application for a protection visa”, relevantly for the purposes of s 48A(1) by reference to whether the application is for a visa which relies on “a criterion” which is mentioned in any one of the four specified paragraphs in s 36(2) (i.e. s 36(2)(a), (aa), (b) or (c)). In other words, it is the presence of one of those stipulated criteria which determines whether a visa application is an application for a protection visa for the purposes of s 48A. Each of those criteria is different from the others. The first two criteria (i.e. s 36(2)(a) and (aa)) reflect essential – but not exhaustive – conditions to the grant of a protection visa on what can broadly be described as refugee and complementary protection grounds respectively. The last two criteria (i.e. s 36(2)(b) and (c)) reflect essential – but not exhaustive – conditions to the grant of a protection visa to a person who is a member of the same family unit as a person who has been granted a protection visa under either of the first two criteria respectively. The definition in s 48A(2) operates by reference to the situation where an application is made for a visa which has as one of its criteria any of the four criteria set out in s 36(2).

36    Secondly, the use of the adjective “further” in s 48A(1) in the context of the phrase “further application for a protection visa” strongly indicates that the intention was to refer to a further application for a protection visa based on the same criterion relied upon in the earlier unsuccessful application for a protection visa. The point is reflected in the fact that one of the meanings given to the adjective “further” in the New Shorter Oxford English Dictionary (Clarendon Press, 1993) is as follows:

further… 2 More extended, going beyond what exists or has been dealt with, additional (emphasis added).

37    Thirdly, the reference in s 48A(1)(a) to “where the grant of the visa has been refused” (emphasis added) is plainly a reference to the refusal of an application for a protection visa made on the basis of one of the criteria mentioned in one of the four specified paragraphs in s 36(2).

38    A construction of s 48A which confines its operation to the making of a further application for a protection visa which duplicates an earlier unsuccessful application for a protection visa (in the sense that both applications raise the same essential criterion for the grant of a protection visa) also accords with common sense. This may be demonstrated by consideration of the proper construction and operation of s 48A both before and after the Amending Act. We will deal with each of those circumstances in turn.

39    Prior to the Amending Act, s 48A(2) was in the following terms:

(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 a member of the same family unit as 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.

40    It is to be noted that, at that time, the definition of an “application for a protection visa” operated by reference to the following 3 categories:

(a)    the making of an application for a visa which contains one of the criteria set out in either s 48A(2)(aa) or (ab);

(b)    the making of an application for a visa or entry permit which contains the criterion set out in s 48A(2)(a); or

(c)    the making of an application as described in either s 48A(2)(b) or (c) (which, broadly speaking, concern applications for recognition under previous statutory regimes).

41    At that time, the two criteria in the first category operated as follows. The first covered the situation involving an application by an applicant (person X) to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (i.e. the situation described in s 48A(2)(aa) prior to the commencement of the Amending Act). A second and separate criterion applied at that time to an applicant (person Y) who is a non-citizen and a member of the same family unit as person X (i.e. the situation described in s 48A(2)(ab) prior to the commencement of the Amending Act).

42    The construction and further operation of these pre-Amending Act provisions may be described by the following hypothetical.

43    Let it be assumed that a husband and wife who are non-citizens arrived in the migration zone at different times, with the wife arriving before her husband. Let it be further assumed that the wife made an unsuccessful application for a protection visa relying on a criterion that she was a non-citizen in Australia to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol (i.e. the criterion mentioned in s 36(2)(a) and also reflected in s 48A(2)(aa) of the Act prior to the Amending Act). Let it be further assumed that, shortly thereafter, her husband arrived in the migration zone and made a successful application for a protection visa for himself alone, relying on the criterion in s 36(2)(a) which is reflected in s 48A(2)(aa) of the Act prior to the Amending Act. There is nothing in the Act or in any extrinsic material to which the Court was taken which suggests that the wife in these circumstances was prevented by s 48A from then applying again for a protection visa as a member of the same family unit as her husband relying not again on the criterion in s 36(2)(a) which is reflected in s 48A(2)(aa), but rather on the criterion in s 36(2)(b) which is reflected in s 48A(2)(ab). The point is that the relevant criteria relied upon by the wife in her two applications under this hypothetical were different and distinct criteria.

44    In our view, that position did not change with the amendments made by the Amending Act. Under those amendments, the previous s 48A(2)(aa) and (ab) were repealed and substituted by a new s 48A(2)(aa) which had the effect of including in the definition of an “application for a protection visa”, “an application for a visa, a criterion for which is mentioned in paragraph 36(2)(a), (aa), (b) or (c)”. Paragraphs 48A(2)(a), (b) and (c) were retained as part of the definition of an “application for a protection visa”.

45    In other words, the Amending Act simply added new and additional criteria by reference to which a protection visa could be applied for and granted. Those new and additional criteria related to complementary protection. Consistently with the previous structure of the Act, which distinguished between what might be described as a personal protection visa based on protection obligations arising under the Refugees Convention as amended by the Refugees Protocol and a family unit protection visa in relation to that type of protection, the Amending Act also distinguished between a personal protection visa based on complementary protection grounds and a family unit protection visa in relation to that type of protection.

46    The hypothetical given above could be repeated by reference to the position obtaining after the Amending Act and the introduction of criteria relating to complementary protection. The Act does not prevent a wife who has unsuccessfully applied for a personal protection visa based on complementary protection directly in respect of herself from subsequently applying for a family unit protection visa in relation to that type of protection where her husband has been granted a protection visa based on complementary protection grounds (or indeed, refugee grounds) applicable to him directly.

47    Consistently with the individual operation of each of the criteria by reference to which an “application for a protection visa” is defined in s 48A(2), we see no basis for a construction which prevents a person such as the appellant from making an application based on a criterion which did not form the basis of a previous unsuccessful application for a protection visa by him.

48    With respect, we do not agree with the Minister’s contention, which was accepted by the learned Federal Magistrate (as he then was), that [105] of the Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011 (Cth) supports the broader construction of s 48A as advanced by the Minister and upheld by the Federal Magistrate. Reliance was placed in particular on [105] of the Explanatory Memorandum which was in the following terms:

[t]he effect is that, for the purposes of s 48A, a non-citizen who, while in the migration zone, has made an application for a protection visa (either on Refugees Convention grounds, or complementary protection grounds) where the grant(s) of the visa(s) has or have been refused, may not make a further application for a protection visa while in the migration zone (italics and emphasis in the original).

49    In our view, that passage simply begs the question whether the earlier making of an unsuccessful application based on a particular criterion prevents the making of a subsequent application for a protection visa relying on a different criterion.

50    We consider that that particular passage from the Explanatory Memorandum is of limited or no utility in construing s 48A.

Some further relevant legislative history

51    The legislative history underlying s 48A of the Act provides further context for the proper construction of s 48A as it currently stands. Section 48A was inserted into the Act in 1995 by the Migration Legislation Amendment Act (No 6) 1995 (Cth) (the 1995 Amendment Act). One of the stated objects of the amendments was identified in item 1(b) of the Schedule to the 1995 Amendment Act as “to prevent non-citizens from making further applications for protection visas in certain cases” (emphasis added,). Section 48A(1) was enacted in terms which have remained the same.

52    Sub-section 48A(2) was enacted by the 1995 Amendment Act in the following terms:

(2)    In this section:

“application for a protection visa” includes:

(a)    an application for a visa, or entry permit (within the meaning of this Act as in force immediately before 1 September 1994), a criterion for which is 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.

53    The Explanatory Memorandum to the Bill which became the 1995 Amendment Act contains the following relevant statements:

8.    The Act is also being amended to stop the use of repeat applications for protection visas by non-citizens to delay their removal and to circumvent the immigration requirements of Australia. This amendment will contribute to increasing the efficiency of Australia’s refugee determination system and to minimising ill-founded protection visa applications. Where the Minister thinks it is in the public interest to do so, he or she will have the power to exercise a non-compellable discretion in favour of allowing the particular individual to lodge a repeat application. The Minister must table a statement in Parliament setting out his or her reasons for thinking this decision is in the public interest.

…

Item 4        After section 48

7.    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 of which involved determination of refugee status. Dependents of such persons are also included in this definition.

8.    Proposed new section 48B provides the Minister with the power to exercise a non-compellable discretion in favour of allowing a particular individual to lodge a repeat application if the Minister thinks it is in the public interest to do so. In exercising this power, the Minister must table a statement in Parliament setting out the determination and the reasons for it, referring particularly to the Minister’s reasons for thinking his or her actions are in the public interest.

54    The Second Reading Speech to the Bill also contained the following relevant statements:

The second purpose of the bill introduced today is to prevent a non citizen from making further applications for a protection visa when they have already made an application, whether or not the prior application has been finally determined.

…

Under current legislation, when a person has exhausted this process, it is not difficult for them to lodge another application for a protection visa and start the whole process again. The fact that repeat applications serve to delay the removal from Australia of the applicant has led to their increased use. The processing of these repeat applications, which like the initial application are free of charge to the applicant, is both expensive and time consuming.

When a system is fair, open and contains the right to appeal the primary decision, claimants will generally have no need to repeat the whole process to get a fair hearing. That fair hearing is amply provided by the system as it exists already. The bill introduced today therefore will have the effect of barring repeat applications in the majority of cases. Its intention in doing so is to protect the integrity of, and support for Australia’s refugee determination system and to ensure that available resources are expended on claims for protection which have not yet been exhaustively assessed.

In introducing this bar on repeat applications, the Government is aware that these will remain circumstances in which particular repeat applications may merit consideration. These cases are likely to include repeat applications which contain information which was not available to the claimant during the course of the first application, and which is of a nature that is likely to have a real bearing on the assessment of the need for protection. Events in the country of origin of the claimant that have occurred since the first claim may also mean that a second consideration is warranted. The Government has therefore decided that the Minister will retain a discretion to allow particular repeat applications to be assessed by the full refugee determination process.

55    While those extrinsic materials make abundantly clear that the intention or purpose of the relevant amendments made by the 1995 Amendment Act was to bar repeat applications for a protection visa (subject to the Minister’s discretion to lift that bar under s 48B), there is no indication that that purpose extended beyond preventing further applications for a protection visa on the same basis as previously sought unsuccessfully. The frequent references to “repeat applications” strongly suggests that the purpose was to prevent an applicant from making a further application which duplicated an earlier application by that applicant, rather than preventing an applicant from making another application for a protection visa based on a different criterion to an earlier unsuccessful application for a protection visa by that applicant.

Relevance of Australia’s international obligations

56    It is appropriate to say something about the appellant’s contention that his construction is to be preferred because it is consistent with the purpose of the Amending Act and gives effect to Australia’s international obligations.

57    There is no doubt that the Amending Act was intended to give effect to Australia’s “non-refoulement obligations” arising under various international instruments to which Australia is a signatory. So much is made clear in the following passages from the Explanatory Memorandum to the Bill which became the Amending Act:

The Migration Amendment (Complementary Protection) Bill 2011 (the “Bill”) amends the Migration Act 1958 (the “Act”) to introduce greater efficiency, transparency and accountability into Australia’s arrangements for adhering to its non-refoulement obligations under the International Covenant on Civil and Political Rights (the “Covenant”), the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty, the Convention on the Rights of the Child (the “CROC”) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “CAT”). Protection from return in situations that engage these non-refoulement obligations is often referred to as “complementary protection”, that being protection under international treaties that is additional to the protection given to refugees under the Convention relating to the Status of Refugees as amended by the Protocol relating to the Status of Refugees (the “Refugees Convention”).

The purpose of the amendments in this Bill is to establish an efficient, transparent and accountable system for considering complementary protection claims, which will both enhance the integrity of Australia’s arrangements for meeting its non-refoulement obligations and better reflect Australia’s longstanding commitment to protecting those at risk of the most serious forms of human rights abuses.

58    The Second Reading Speech to the Bill which became the Amending Act reinforces the fact that the purpose was to give effect to Australia’s non-refoulement obligations under those treaties. Indeed, the Minister expressly stated that the Bill “aligned” Australia’s protection visa process with its existing international obligations and practices. The following extracts from the Second Reading Speech are relevant in identifying the legislative purpose (see Commonwealth, Parliamentary Debates, House of Representatives, 24 February 2011,1356 (the Honourable Chris Bowen MP)):

The Migration Amendment (Complementary Protection) Bill 2011 amends the Migration Act to eliminate a significant administrative hole in our protection visa application process.

Under the Migration Act, as it currently stands, only those people fleeing persecution for one of the five reasons outlined in the Convention Relating to the Status of Refugees—race, religion, nationality, social group or political opinion—are eligible to receive a protection visa through the usual process.

Applicants who fall outside these categories are not considered refugees and, consequently, their applications must be rejected by the Department of Immigration and Citizenship and also by the Refugee Review Tribunal.

But some of these people are fleeing significant harm—be they women fleeing so called ‘honour killings’ or, in some certain circumstances depending on the nation, people fleeing persecution on the basis of their sexual preference.

These people can fall outside the categories recognised by our current protection visa process.

So their applications will be rejected at first instance—and again at review—even where Australia’s non-refoulement obligations and other international treaties ensure that we cannot and will not send them back to their countries of origin.

These treaties are the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the Convention on the Rights of the Child (CROC).

Protection from return in situations that engage our non-refoulement obligations under these treaties is known as ‘complementary protection’, in the sense that it is complementary to the protection given under the refugees convention.

Under the current system, these people, who have often fled their countries in fear of their lives, must go through our administrative processes knowing they are going to be rejected.

But at present we make them go through a process of applying, failing, seeking review and failing again, just so they are then able to apply to the minister for personal intervention.

As things stand, the decision to grant a visa in such cases may only be made by the minister personally. The minister cannot be compelled to exercise this power; there is no requirement to provide reasons if the minister does not exercise the power; and there is no merits review of the minister’s decisions.

As a result, as you can understand, the current lengthy process is very time consuming and extremely stressful.

So what this bill does is align our protection visa process with our existing international obligations and practices (emphasis added).

59    It is now well settled that if the language of legislation is susceptible of a construction which is consistent with the terms of an international instrument and the obligations it imposes on Australia, that construction should prevail (see Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J). The relevant principles were described by Kiefel J in Plaintiff M70/2001 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at [247] as follows (omitting footnotes):

In Polites v Commonwealth it was accepted that a statute is to be interpreted and applied, so far as its language permits, so that it is in conformity, and not in conflict, with established rules of international law. In Minister for Immigration and Ethnic Affairs v Teoh, Mason CJ and Deane J took the proposition to apply to favour the construction of a statute which is in conformity, and not in conflict, with Australia's international obligations, at least so far as the language of the legislation permits. The ambiguity, to which such a construction was relevant, should not be viewed narrowly, in their Honours' view. Their Honours went on to say:

So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations.

The rule of construction stated in Teoh has been applied in Kartinyeri v The Commonwealth, Plaintiff S157/2002 v The Commonwealth, and Coleman v Power. However, if it is not possible to construe a statute conformably with international law rules, the provisions of the statute must be enforced even if they amount to a contravention of accepted principles of international law. Such a position is not reached after construing s 198A(3)(a).

60    Here, to deny a person a statutory entitlement to seek protection from, for example, torture, because the Minister had previously not been satisfied of a claim of a well-founded fear of persecution under the Refugees Convention would not only conflict with Australia’s international obligations, but also would be arbitrary.

61    Nothing in the above approach denies the central task with which the Court is concerned: the construction of a law of the Parliament: cf NBGM v Minister for Immigration and Multicultural Affairs [2006] HCA 54; 231 CLR 52.

62    In our view, applying those principles here, the construction of s 48A which we have described above by reference to considerations apart from Australia’s international obligations is further supported by the fact that that construction is consistent with Australia’s relevant international obligations.

Minister’s notice of contention

63    The Minister filed a notice of contention which relates to the learned Federal Magistrate’s finding at [157] of his reasons for judgment that the word “includes” used in s 48A(2) of the Act (the terms of s 48A(2) are set out in [23] above) does not have the effect of making the definition of “application for a protection visa” expansive and non-exhaustive as argued by the Minister.

64    The Minister contends that the use of the word “includes” in the definition provision is s 48A(2), as opposed to “means”, indicates that the definition should be understood as expansive rather than exhaustive. He cites cases in support of that contention such as Douglas v Tickner (1994) 49 FCR 507 at 519 per Carr J and Federal Commissioner of Taxation v St Hubert’s Island Pty Ltd (in liq) (1978) 138 CLR 210 at 216 per Stephen J. The Minister argues that, because the definition in s 48A(2) is expansive and not exhaustive, the appellant’s previous protection visa application is properly identified as an “application for a protection visa” for the purposes of s 48A even if it is not found to come within the terms of s 48A(2)(aa).

65    The Minister also contends that this construction is supported by the text of s 48A(2) prior to the Amending Act. He says that the original text of that provision did not refer to s 36 or the criteria contained therein (see [48] above). The only specific examples mentioned in the original text of s 48A(2) (i.e. paragraphs (a) to (c)) were applications for forms of recognition under earlier statutory regimes which would not come within the ordinary meaning of the phrase “application for a protection visa”. The Minister says that this tends to confirm that the inclusion of specific examples was intended to expand rather than limit the concept of “application for a protection visa”, and that the phrase was otherwise intended to have its ordinary meaning. He says that no different intention is revealed by the subsequent insertion in s 48A(2) of paragraphs (aa) and (ab) by the Migration Legislation Amendment Act (No 6) 2001 (Cth) respectively. The Minister argues that each specific paragraph “is either confirmatory or expansive of that basic meaning” and their inclusion was intended to ensure that s 48A would not be avoided by reliance on changes in the statutory description of, or the criteria for the grant of, the relevant visa or entry permit over time.

66    For the following reasons, we reject those submissions.

67    First, the question whether a definition provision which uses the word “includes” is exhaustive or merely expansive is frequently determined by a consideration of whether the definition expands upon what otherwise would fall within the ordinary meaning or common usage of the defined term. The point is well illustrated by St Huberts, one of the cases cited by the Minister. The issue there was whether the following definition of “trading stock” in s 6(1) of the Income Tax Assessment Act 1936 (Cth) was exhaustive or expansive, that section provided:

… “trading stock” includes anything produced, manufactured, acquired or purchased for purposes of manufacture, sale or exchange, and also includes live stock.

At 215-216 Stephen J identified the relevant issue as follows:

There is another aspect of this statutory meaning of trading stock which is of present relevance. It is whether it is a true definition, giving to “trading stock” when used in the Act an exclusive meaning, so that anything falling outside it will not be trading stock although answering that description according to common usage; or whether, on the contrary, it operates as merely expansive of what would otherwise be conveyed by the ordinary meaning of “trading stock”.

68    In resolving that question, Stephen J noted at the outset that the statutory definition of “trading stock” enlarged the ordinary meaning of the term by including things acquired not only for purposes of sale or exchange, but also for purposes of manufacture. His Honour also noted that there was a further enlargement of the ordinary meaning of trading stock, by including live stock. Those considerations, together with the fact that the relevant statutory definition used the word “includes”, as opposed to “means” (which was used in many of the other definitions in s 6(1)), meant that the definition of “trading stock” was expansive and not exhaustive.

69    The difficulty with the Minister’s argument that the definition in s 48A(2) is also expansive and not exhaustive is that, unlike an expression such as “trading stock”, the concept of an “application for a protection visa” has no ordinary meaning independently of the relevant descriptions of that particular class of visa in the Act. In other words, it is the Act itself which provides the meaning of “an application for a protection visa”, not common usage.

70    Secondly, and arising from that first consideration, where a concept is entirely the creation of a legislative scheme (such as the concept of “an application for a protection visa”), it is more likely in our view that a definition such as that contained in s 48A(2) is exhaustive. Otherwise, considerable uncertainty and confusion would result in determining whether or not a particular application for a visa is an application for a protection visa.

71    Thirdly, in the particular statutory context of this Act, which involves the use of terms “includes” and “means” in numerous instances involving definition provisions (particularly in the primary definition provision in s 5 of the Act), in our view the task of construction is not meaningfully advanced by contrasting the use of the terms “includes” and “means” in such provisions with the use of the term “includes” in s 48A(2).

72    Even if, textually, “includes” is not seen as exhaustive, the lack of ordinary English meaning to the phrase “application for a protection visa” means that there is no basis to read s 48A(1) by reference to that phrase being defined, rather than by reference to the relevant part of the definition (as we have earlier done). It may be that if another kind of protection visa were to be created under the Act, s 48A(2) would not have to be amended so as to engage the prohibition in s 48A(1). It would depend on the meaning given to the words by reference to which the new kind of visa was created.

73    For these reasons, we would reject the Minister’s notice of contention.

Conclusions

74    For all these reasons, the appeal should be allowed, the orders of the FMCA made on 3 April 2013 should be set aside, a declaration should be made that the application for a protection visa lodged by the appellant on 10 October 2012 was not invalid under s 48A of the Act and the respondent ordered to consider and determine that application according to law. The Minister’s notice of contention should be dismissed.

75    The appellant should have his costs of the proceedings below and of the appeal.

Associate:

Dated: