FEDERAL COURT OF AUSTRALIA

AZABF v Minister for Immigration and Border Protection [2015] FCAFC 174

THE COURT ORDERS THAT:

The appeal be dismissed, with each party paying their own costs of the appeal.

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

REASONS FOR JUDGMENT

THE COURT

1    Before the Court is an appeal against a decision of the Federal Circuit Court of Australia given on 20 May 2015. In that decision the primary Judge found, in substance, that the Court was bound by the decision of Gleeson J in SZRWA v Minister for Immigration and Border Protection [2015] FCA 293 in relation to amendments made to s 48A of the Migration Act 1958 (Cth) (the Act) with effect from 28 May 2014, and that as a result the appellant was statute-barred from making a second application for a protection visa under the Act. The appellant claims in the notice of appeal as follows:

1.    The learned Judge in erred in not holding that, on the proper construction of s.48A(1C) of the Migration Act 1958 (Cth) (‘the Act’), s. 48A of the Act did not prevent the appellant from making a further application for protection visa and that, in the premises, mandamus should issue compelling the respondent to consider the appellant’s further application pursuant to s. 47 of the Act.

(Errors in original.)

2    The appellant seeks the following orders:

1.    The appeal be allowed.

2.    The orders made by the learned Judge on 20 May 2015 be set aside and lieu thereof order:

a.    An order in the nature of a writ of mandamus that the respondent consider the applicant’s application for a protection visa received on 30 May 2014.

b.    The respondent pay the applicant’s costs of the application fixed in the sum of $6,646.00.

3.    The respondent pay the appellant’s costs of the appeal.

4.    Such further or other orders as this Honourable Court deems fit.

Background

3    The appellant applied to the Minister of Immigration and Citizenship (now Minister for Immigration and Border Protection) (the Minister) for a Protection (Class XA) visa (protection visa) under s 65 of the Act on 6 April 2009, claiming to be a citizen of Albania who arrived in Australia on 24 March 2009.

4    At that time, s 36(2)(a) of the Act provided that a criterion for the grant of a protection visa was that the applicant for the visa be a non-citizen to whom the Minister is satisfied Australia had protection obligations under the Refugee Convention as amended by the Refugees Protocol. The appellant relied on this criterion in respect of his application.

5    A delegate of the Minister refused to grant the appellant a protection visa on 10 August 2009.

6    The appellant sought review of the decision of the delegate in the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal) on 20 August 2009. On 25 November 2009 the Tribunal affirmed the decision of the delegate not to grant the appellant a protection visa.

7    On 5 January 2011 the appellant filed an application for an extension of time in which to seek judicial review of the decision of the delegate in the Federal Magistrates Court (as it then was). This application was refused (see AZABF v Minister for Immigration and Citizenship [2011] FMCA 635).

8    With effect from 24 March 2012, s 36 of the Act was amended by the Migration Amendment (Complementary Protection) Act 2011 (Cth) (the 2011 Amendment Act) to introduce a complementary protection regime into the Act. In particular, s 36(2)(aa) was inserted into s 36. Following the amendment s 36(2) provided:

(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.

9    On 3 July 2013 the Full Court delivered judgment in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235. In SZGIZ an application for a protection visa by the visa applicant had previously been rejected in circumstances where the visa applicant had based his claim on the Refugees Convention as amended by the Refugees Protocol. After the commencement of the 2011 Amendment Act, the same visa applicant made a fresh application for a protection visa relying on the complementary protection grounds referable to s 36(2)(aa) of the act. The Full Court held, inter alia, that an application made for a protection visa in reliance of s 36(2)(aa) was not barred by s 48A of the Act by reference only to an earlier application for a protection visa, where the criterion upon which the application was based did not form the basis of a previous unsuccessful application for a protection visa. So far as material, s 48A at the time of consideration by the Full Court provided as follows:

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.

10    Materially at 247 [55] of the decision the Full Court observed:

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.

11    Following the decision in SZGIZ, the Act was amended in accordance with the Migration Amendment Act 2014 (Cth) (the 2014 Amendment Act). This Act commenced operation on 28 May 2014.

12    The Explanatory Memorandum to the Migration Amendment Bill 2013 (Cth) (passed into law as the 2014 Amendment Act) materially provided:

... the Court in [SZGIZ] held that there were effectively different sets of criteria by which a protection visa can be applied for and granted. The Court concluded that section 48A of the Migration Act does not prevent a non-citizen making a further protection visa application based on a criterion which did not form the basis of a previous unsuccessful protection visa application. This outcome is contrary to the policy intention of section 48A, which is that a non-citizen should not be able to make a further protection visa application in the migration zone after a previous protection visa application has been refused or a protection visa held by the person has been cancelled, irrespective of the grounds on which their earlier protection visa application was refused or the grounds on which the cancelled visa was originally granted, and whether or not the grounds or criteria existed earlier.

13    In particular, since the commencement of the 2014 Amendment Act, s 48A provides as follows:

No further applications for protection visa after refusal or cancellation

(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, or have a further application for a protection visa made on his or her behalf, while the non-citizen is in the migration zone.

(1AA)    Subject to section 48B, if:

(a)    an application for a protection visa is made on a non-citizen’s behalf while the non-citizen is in the migration zone; and

(b)    the grant of the visa has been refused, whether or not:

(i)    the application has been finally determined; or

(ii)    the non-citizen knew about, or understood the nature of, the application due to any mental impairment; or

(iii)    the non-citizen knew about, or understood the nature of, the application due to the fact that the non-citizen was, at the time the application was made, a minor;

the non-citizen may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non-citizen is in the migration zone.

(1A)    For the purposes of this section, a non-citizen who:

(a)    has been removed from the migration zone under section 198; and

(b)    is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d) or (e);

is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a).

Note:    Paragraphs 42(2A)(d) and (e) cover limited situations where people are returned to Australia despite their removal under section 198.

(1B)    Subject to section 48B, a non-citizen in the migration zone who held a protection visa that was cancelled may not make a further application for a protection visa while in the migration zone.

(1C)    Subsections (1) and (1B) apply in relation to a non-citizen regardless of any of the following:

(a)    the grounds on which an application would be made or the criteria which the non-citizen would claim to satisfy;

(b)    whether the grounds on which an application would be made or the criteria which the non-citizen would claim to satisfy existed earlier;

(c)    the grounds on which an earlier application was made or the criteria which the non-citizen earlier claimed to satisfy;

(d)    the grounds on which a cancelled protection visa was granted or the criteria the non-citizen satisfied for the grant of that visa.

(1D)    …

(1E)    …

(2)    In this section:

“application for a protection visa” means:

(aa)    an application for a visa of a class provided for by section 35A (protection visas--classes of visas), including (without limitation) an application for a visa of a class formerly provided for by subsection 36(1) that was made before the commencement of this paragraph; or

Note:    Visas formerly provided for by subsection 36(1) are provided for by subsection 35A(5). Subsection 36(1) was repealed by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, which also inserted section 35A and this paragraph.

14    On 30 May 2014 – two days after the commencement of the 2014 Amendment Act – the appellant purported to lodge a further application for a protection visa. In this application the appellant sought to rely on s 36(2)(aa) which was not in force at the time of his first application in 2009, and which constituted a criterion upon which he had not previously relied in an application for a protection visa by him.

15    On 11 August 2014, a delegate of the Minister determined that the application was not valid. It is this application which is the subject of the current proceedings.

Application to the Federal Circuit Court

16    On 15 September 2014, the appellant filed an application in the Federal Circuit Court under s 476 of the Act for judicial review of the decision of the delegate. The appellant claimed:

1.    Section 48A of the [Migration Act] does not prevent a person from making a subsequent Protection visa application where claims for protection (complementary protection) were not previously considered.

2.    The introduction of section 48A(1C) on 28 May 2014 does not prevent an individual who has not previously had a claim for complementary protection considered by the Department from making an application for a Protection visa.

17    The appellant did not file any written submissions in respect of the application, however he conceded, through his Counsel in oral argument before the court below, that the Federal Circuit court was bound by the decision of the Federal Court in SZRWA, and therefore the application could not succeed on that level. The appellant reserved his position with respect to the correctness of SZRWA.

18    The judgment of the court below is short, and can be transcribed in its entirety:

1.    This is an application for a Constitutional writ in the nature of mandamus alleged to be within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a refusal by the Minister to entertain a protection visa application by the applicant, which refusal was communicated on 11 August 2014. The grounds set out as follows:

Section 48A of the Migration Act does not prevent a person from making a subsequent Protection visa application where claims for protection (complementary protection) were not previously considered.

The introduction of section 48A(1c) on 28 May 2014 does not prevent an individual who has not previously had a claim for complementary protection considered by the Department from making an application for a Protection visa.

2.    Counsel for the applicant properly drew to the Court’s attention at the commencement of the hearing to the fact that the grounds raised in the application were ones in respect of which there is a binding decision of the Federal Court of Australia that is dispositive of the only grounds sought to be raised by the applicant. The applicant candidly and properly conceded that there are no distinguishing circumstances from the binding application of the legal principles identified in that case.

3.    The applicant’s counsel identified that that Court was bound by the decision of Gleeson J in SZRWA v Minister for Immigration and Border Protection [2015] FCA 293 in relation to the amendments made to s.48A of the Migration Act 1958 with effect from 28 May 2014. Relevantly, in relation to that application counsel for the applicant acknowledged that the applicant was a non-citizen who, while in a migration zone, made an application for a protection visa which had been refused and which, in fact, had been finally determined.

4.    It is, in those circumstances, clear that this Court is bound by the decision in SZRWA and that the applicant is not entitled to make a further application for protection visa while in the migration zone. It is common ground that the applicant is still in the migration zone, and the decision of the Minister declining to entertain the further application was clearly correct. Counsel for the applicant foreshadowed a formal challenge to the decision binding on this Court. I am clearly satisfied that the decision of Gleeson J in SZRWA is both binding on this Court and is correct in the construction of s.48A of the Migration Act 1958. For these reasons, the application is dismissed.

19    On 5 June 2015, the appellant filed a notice of appeal to this Court.

20    The arguments now sought to be advanced in this Court, it would appear, were not previously advanced for resolution before the Federal Circuit Court. Counsel for the Respondent Minister, however, did not oppose this Court resolving the question of statutory construction posed by the amendment in 2014 to s 48A(1C).

Submissions of the parties

21    The submissions of both parties in this appeal are short.

22    The appellant submits, in summary:

    The appellant lodged his second application for a protection visa on 30 May 2014, and sought to rely upon paragraph 36(2)(aa) of the Act which was not in force at the time of his first application.

    Accordingly, the appellant sought to rely upon a different criterion to that on which he relied in his first application for a protection visa.

    The new s 48A(1C) clearly prohibits further applications for protection visas in circumstances where a claim for “complementary protection” could have been made, but was not.

    In this case the appellant could not have made an application for a protection visa based on the complementary protection provisions at the time of his first application for a protection visa. The statutory entitlement to do so is new.

    The concepts of “grounds” and “criteria” in s 48A are ambiguous, and possibly interchangeable.

    It would have been a relatively straightforward amendment to the Act if Parliament had intended to prevent any person who made an application prior to the commencement of the complementary protection provisions from making a later application after the 2014 Act. It did not do so.

23    The Minister submits, in summary, that:

    the appellant has not identified any basis for asserting that the primary Judge fell into reviewable error, nor why SZRWA was wrongly decided;

    section 48A was amended after the decision in SZGIZ specifically to deal with issues there arising; and

    section 48A in its current terms plainly disposes of the matter in the Minister’s favour.

Consideration

24    In our view this matter can be swiftly determined. We consider that the appeal should be dismissed.

25    The terms of ss 48A(1), 48A(1C), 48A(2)(aa) and 36(2)(aa) of the Act read together act as a bar to the lodgement by the appellant of his second application for a protection visa. In particular, we note:

    section 48A(1C)(b), which provides that s 48A(1) applies such that a non-citizen who has made a previously unsuccessful application for a protection visa may not make a further application for a protection visa, whether the grounds on which an application would have been made or the criteria which the non-citizen would claim to satisfy existed earlier;

    section 48A(2)(aa), which defines “application for a protection visa” as including an application for a visa that, under the Act or the regulations in force at any time, is or was a visa of the class known as protection visas; and

    section 36, which is headed “Protection visas – criteria provided for by this Act”, and in particular s 36(2)(aa) which provides that a criterion for a protection visa is that the applicant for the visa satisfy the Minister of (in effect) Australia’s complementary protection obligations to that applicant.

26    It is clear to us that it is irrelevant whether the grounds or criteria on which a non-citizen relies in his or her subsequent protection visa application were available for reliance by that visa applicant at an earlier point in time (including the time when the non-citizen made an earlier protection visa application). We do not accept the submission of the appellant that the language of s 48A(1C)(b) is ambiguous. Section 36(2) unambiguously sets forth the “criterion for a protection visa”. And s 48A(1C) is equally unambiguous when it relevantly provides in s 48A(1C)(b) that a person may not make a further application for a protection visa “regardless of … the grounds on which an application would be made or the criteria which the non-citizen would claim to satisfy existed earlier”. Even though the “criterion” now sought to be relied upon, namely s 36(2)(aa) did not exist as at the date of the earlier application, s 48A(1C)(b) is unambiguous in its prohibition on a further application being made “regardless of … whether” the criterion now relied upon “existed earlier”. We note that the plain language of the legislation is supported by the Explanatory Memorandum, which details the policy behind the introduction of s 48A(1C). In our view the decision of the Full Court in SZGIZ has been superseded by the 2014 Amendment Act, to the extent that that decision permitted a person whose application for a protection visa has been rejected to make another application based on a different criterion in s 36(2) of the Act.

27    In light of the statutory regime following the commencement of the 2014 Amendment Act (and in place at the time the appellant made his second visa application), it follows that it is irrelevant that the appellant could not, in 2009 at the time of his first protection visa application, have relied on the complementary protection provisions in s 36(2)(aa) of the Act. It is not in dispute that the appellant has previously sought, and been denied, a protection visa. Section 48A(1) of the Act prohibits him lodging another application for a protection visa.

28    At the hearing before us the parties made brief submissions concerning the decision of Gleeson J in SZRWA. That decision is not the subject of appeal, it was an interlocutory application for leave to appeal wherein the applicant was self-represented, and we do not know on what basis the case was argued before her Honour. In our view, it is neither desirable nor necessary to make any comments concerning her Honour’s decision, other than to observe that the decision appears to be in accordance with the principles we have explained in this decision, and was accordingly correctly decided.

29    It follows that the decision of the Federal Circuit Court judge in this case was correctly decided.

30    The only question remaining is that of costs. We note that this is the first appeal to this Full Court to deal with legislative amendments enacted – it appears – to specifically address the decision of this Court in SZGIZ. We consider that there is a public interest in the efficacy of those amendments being tested in and determined by this Court. In our view the appropriate order is to dismiss the appeal, but with each party paying their own costs of the appeal.

Associate:

Dated:    4 December 2015