FEDERAL COURT OF AUSTRALIA

SZVBN v Minister for Immigration and Border Protection [2017] FCAFC 90

ORDERS

THE COURT ORDERS THAT:

1.    To the extent that it is required, leave to appeal be granted in respect of the orders made on 11 December 2015 by the primary judge.

2.    The appeal be allowed.

3.    Orders 2, 3 and 4 of the orders made on 11 December 2015 by the primary judge be set aside.

4.    The matter be remitted to the Federal Circuit Court of Australia for reconsideration according to law.

5.    The first respondent pay the appellants’ costs of the appeal, as agreed or assessed.

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

REASONS FOR JUDGMENT

SIOPIS J:

1    I have had the benefit of reading the reasons for judgment of Mortimer J. I agree with those reasons for judgment and with the orders proposed by Mortimer J.

Associate:

Dated:    7 June 2017

REASONS FOR JUDGMENT

ROBERTSON J:

2    I have had the advantage of reading in draft the judgment of Griffiths J. I agree with the orders proposed by his Honour and with the reasons for those orders.

3    I emphasise the following considerations on the issue of statutory construction which is before the Court.

4    First, s 48A of the Migration Act, read with s 46(1)(d), is directed to what a person may not validly do as a non-citizen in the migration zone. Where that non-citizen has made an application for a protection visa where the grant of the visa has been refused then, subject to s 48B, that non-citizen may not validly make a further application for a protection visa while in the migration zone.

5    Second, although I accept the submission on behalf of the Minister that s 48A is part of a regime for responding to Australia’s international obligations which are specified in s 36, I do not accept a useful starting point to be that s 48A “reflects a very strict policy to the effect that a person’s claims to protection… are to be, at least in the usual case, considered only once.” This seems to me to beg the question.

6    Third, it follows that I prefer to approach the question of statutory construction by reference to the person to whom the section is directed, rather than to the “strict policy” based on simplicity of administration contended for by the Minister.

7    Fourth, in my opinion the terms of s 48A are ambiguous, in the sense that they are open to more than one construction.

8    Fifth, I am not persuaded that s 48A should be construed as coterminous with the validity of the first application for the grant of a protection visa. While that implication may be available, it would have been relatively simple to express that criterion if that had been intended by the Parliament.

9    Sixth, the construction of s 48A by the majority in Soondur v Minister for Immigration and Multicultural Affairs [2002] FCAFC 324; 122 FCR 578 at [38] per Gray J and [109] per Goldberg J, that, with respect to the making of applications under the Migration Act, it is necessary to enquire whether a particular non-adult applicant in fact had capacity to make an application at the time when the application was made, was unaffected by the legislative amendments made to the section up to 25 September 2014, by the Migration Legislation Amendment Act (No 1) 2014 (Cth).

10    Seventh, in relation to the mischief to which s 48A is directed, in my opinion, consistently with the language of the section, it is directed to non-citizens who could otherwise make repeat applications for protection visas while in the migration zone. That does not answer the question raised by s 48A of who made the earlier application for a protection visa.

11    Eighth, I am not persuaded that the language of s 48A supports the submission on behalf of the Minister that “the references to having made an application extend to all situations in which the law would recognise or treat this person is having made the application.” There is a slippage towards the passive voice in this formulation, which I do not accept.

12    Ninth, there is no express provision which deems a visa application lawfully made by a parent on behalf of the child to be an application made by the child, and I do not consider as sustained the implication to that effect, for which the Minister contended, by reason of a visa application on behalf of a child being valid. Section 98 is such a deeming provision.

13    Tenth and last, contrary to the submission on behalf of the Minister, there is not enough in the text, context, purpose or legislative history of s 48A, in my opinion, to expand the scope of the word “made” in s 48A to attribute the making of the first application to a child and treating the first application as the child’s own act.

Associate:

Dated:    7 June 2017

REASONS FOR JUDGMENT

GRIFFITHS J:

Introduction

14    The central issue in the appeal is whether, on their proper construction as in force at the relevant time, ss 48A and 46(1)(d) of the Migration Act 1958 (Cth) (the Act) applied to render not valid a second application for a protection visa concerning a mother and her daughter and son in circumstances where an earlier protection visa application involving those three persons had been assessed and refused.

15    The appellants are all citizens of the Republic of Korea (South Korea). The first named appellant, SZVBN, is the daughter. The second named appellant, SZVBO, is the son. The third named appellant, SZVBP, is the mother.

16    On 17 November 2011, the mother applied for a protection visa (the first protection visa). Her daughter and son were included in that application as members of the family unit, but they did not make their own claims for protection. The daughter was born in June 1998 and, on 17 November 2011, she was aged 13. The son was born in October 2002 and, on 17 November 2011, he was aged 9. On 18 April 2012, the Minister’s delegate refused to grant the first protection visa application. The parties in the appeal do not dispute that the first protection visa application was a valid application. I will return to discuss the significance of this common ground in [36] below.

17    On 12 August 2014, the daughter (who was then aged 16) made an application for a protection visa (the second protection visa application). Her mother and her brother (i.e. the son, who was then aged 11) were included in the second protection visa application. The mother did not raise any claims of her own. The son did, however, and his claims largely mirrored those of his sister.

18    On 15 August 2014, an officer of the Minister’s Department determined that the second protection visa application was not valid by reason of the operation of ss 46(1)(d) and 48A of the Act and the making of the first protection visa application. The appellants sought judicial review of that determination in the Federal Circuit Court of Australia (FCCA). As will be developed further below, the primary judge ordered that a separate question should be determined which focused on the issue whether, following the Full Court’s decision in Minister for Immigration and Border Protection v Kim [2014] FCAFC 47; 221 FCR 523 (Kim), there was a requirement of knowledge of a visa application for s 48A(1) of the Act to apply. The primary judge answered this question in the negative (see SZVBN & Ors v Minister for Immigration and Border Protection [2015] FCCA 2977 (SZVBN at first instance)). The appeal is from orders of the FCCA made on 11 December 2015, which inter alia dismissed the appellants’ judicial review application to that Court filed on 15 September 2014. The mother’s participation as a party in the appeal to this Court was not questioned by any of the other parties, including the Minister.

Summary of key legislative provisions

19    It is convenient to first set out the two central statutory provisions as at 12 August 2014, namely ss 46 and 48A of the Act. They relevantly provided:

46    Valid visa application

(1)    … an application for a visa is valid if, and only if:

…

(d)    it is not prevented by section … 48A (protection visa),…

…

48A 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)    …;

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

(1A)    …

(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.

(2)    In this section:

application for a protection visa includes:

(aa)    an application for a visa that, under this Act or the regulations as in force at any time, is or was a visa of the class known as protection visas; 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.

20    It is desirable to now describe or set out some additional provisions in both the Act and in the Migration Regulations 1994 (Cth) (the Regulations), as at 12 August 2014, which are potentially relevant to the task of statutory construction on the appeal.

21    The object of the Act was set out in s 4. That provided that the object was to regulate in the national interest the coming into and presence in Australia of non-citizens.

22    Section 29 empowered the Minister to grant a visa to a non-citizen.

23    Section 30 described the kinds of visa which may be granted, and distinguished between permanent and temporary visas.

24    Section 31 provided for classes of visa (including protection visas as defined in s 36). Subsection 31(3) provided that the regulations may prescribe criteria for a visa or visas of a specified class, including s 36. By s 5, “prescribed” was defined to mean prescribed by the regulations.

25    Section 36 dealt with protection visas. Section 36(1) provided that there was a class of visas to be known as “protection visas”. Subsection 36(2) specified the criteria for a protection visa. The first two criteria (i.e. those in paragraphs (2)(a) and (aa)), related respectively to the Minister’s satisfaction that a non-citizen in Australia was owed protection obligations under the Refugees Convention as amended by the Refugees Protocol, or, alternatively, under the complementary protection provisions. The third and fourth criteria (i.e. those in paragraphs (2)(b) and (c)) related to an applicant for a protection visa who is a member of the same family unit as a non-citizen who is mentioned in either paragraphs (2)(a) or (aa) and holds a protection visa.

26    Section 45(1) provided that a non-citizen “who wants a visa must apply for a visa of a particular class”.

27    The relevant part of s 46 is set out in [19] above.

28    When a valid application for a visa was lodged, the Minister was obliged under s 47 to consider it. This obligation continued until, inter alia, the application was withdrawn or the visa was granted or refused. Subsection 47(3) provided that, to avoid doubt, the Minister was not to consider an application that was not a valid application. It was made clear in s 47(4) that a decision by the Minister that an application was not valid and could not be considered was not a decision to refuse to grant the visa.

29    Sections 48 and 48A imposed restrictions on further visa applications by a non-citizen (it will be necessary to return below to discuss s 48 in the context of the Full Court’s decision in Kim). Section 48A is a key relevant provision on the appeal. Its relevant terms are set out in [19] above. Section 48B empowered the Minister, in certain circumstances, to determine that the restrictions imposed by s 48A did not apply to a particular non-citizen and enabled an application for a protection visa to be made by the non-citizen within a specified period. It provided:

48B    Minister may determine that section 48A does not apply to non‑citizen

(1)    If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non‑citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non‑citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.

(2)    The power under subsection (1) may only be exercised by the Minister personally.

(3)    If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:

(a)    sets out the determination; and

(b)    sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.

(4)    A statement under subsection (3) is not to include:

(a)    the name of the non‑citizen; or

(b)    any information that may identify the non‑citizen; or

(c)    if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.

(5)    A statement under subsection (3) is to laid [sic] before each House of the Parliament within 15 sitting days of that House after:

(a)    if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

(b)    if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

(6)    The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non‑citizen, whether he or she is requested to do so by the non‑citizen or by any other person, or in any other circumstances.

30    Section 50 should also be noted. It provided for the circumstances where a non-citizen was not prevented from making a second application for a protection visa and the information which must be considered in the later application. It provided that if a non-citizen “who has made… an application for a protection visa”, where the grant of the visa had been refused and the application had been finally determined (i.e. not where the first application was not a valid application), and the non-citizen made a further application for a protection visa, the Minister in considering that further application was not required to reconsider any information which was considered in the earlier application and was entitled to have regard to, and take to be correct, any previous decision that the Minister had made about or because of that information. The note to s 50 stated that s 48A “prevents repeat applications for protection visas in most circumstances where the applicant is in the migration zone”.

31    Section 65 described the Minister’s statutory task in deciding whether or not to grant a visa. That task turned on whether the Minister was satisfied that the specified criteria were met (in which case the relevant visa had to be granted) or, if not so satisfied, the Minister was obliged to refuse to grant the visa.

32    It is also relevant to note some relevant provisions of the Regulations, as in force on 12 August 2014, and which specified inter alia the approved forms to be completed by an applicant for a visa, including a protection visa. Significantly, the Regulations also provided that an applicant for a visa (including a protection visa) must complete an approved form in accordance with any directions on it.

33    As at 12 August 2014, reg 2.07 provided:

2.07    Application for visa – general

(1)    For sections 45 and 46 of the Act (which deal with applications for visas), if an application is required for a particular class of visa:

(a)    the relevant item of Schedule 1 sets out the approved form (if any) to be completed by an applicant; and

(b)    regulation 2.12C and the relevant item of Schedule 1 set out:

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

(ii)    the components that may be applicable to a particular application for the visa; and

(c)    the relevant item of Schedule 1 sets out other matters relating to the application.

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

(4)    An application for a visa that is made using an approved form is not a valid application if the applicant does not set out his or her residential address:

(a)    in the form; or

(b)    in a separate document that accompanies the application.

34    As at 12 August 2014, Pt 4 of Sch 1 to the Regulations, which prescribed forms and charges for protection, refugee and humanitarian visas, relevantly provided in item 1401 (which related to Protection (Class XA) visas), as follows:

1401.    Protection (Class XA)

(1)    Form: 866.

…

(3)    Other:

(a)    Application must be made in Australia.

(b)    Applicant must be in Australia.

(c)    Application by a person claiming to be a member of the family unit of a person who is an applicant for a Protection (Class XA) visa may be made at the same time and place as, and combined with, the application by that person.

(4)    Subclasses:

    866 (Protection).

35    Regulation 1.12(1), as in force at the relevant time, provided that a person is a member of the family unit of another person (the family head) if inter alia, the person is a dependent child of the family head. Moreover, “dependent child” was defined in reg 1.03 as including a child of a person where the child has not turned 18. It was presumably in reliance upon these provisions that the daughter and son were included in the first protection visa application as members of the family unit relating to their mother.

The first and second protection visa applications

36    As noted above, it was common ground between the parties that the first protection visa application was a valid application. It is important to note, however, that Mr Jones of counsel (who appeared for the appellants) made clear that his clients’ acceptance of the proposition that the first protection visa application was validly made, simply meant that they accepted that the application had been made in a physical sense, but that the parties disagreed as to whether the expression “has made” in s 48A had further content. He described the appellants’ position as that “has made” means “has validly and knowingly made”.

37    It is convenient to describe some relevant features of the first and second protection visa applications, which involved the filling out of approved forms, copies of which were included in the appeal book (although they were not the subject of any detailed findings of fact below because of the course taken there to hear and determine a separate question). The contents of the approved forms do not, of course, dictate or affect the proper construction of s 48A of the Act. They are relevant, however, in two respects. First, they provide a practical framework within which the task of statutory construction is to be performed. Secondly, and more importantly, their contents are potentially relevant to the operation of reg 2.07(3) which, as noted above, required an applicant for a visa to complete an approved form in accordance with any directions on it.

38    The first protection visa application comprised Parts B, C and D, all of which were approved forms at the relevant time. Part B comprised Form 866B. It was stated in the footer that the design of that pro-forma was dated April 2011. Part B was entitled “Persons included in this application and family composition”. It was signed by the mother in her own right and dated 2 November 2011. The first protection visa application was received by the Department on 17 November 2011. The daughter and son were also identified in question 1 of Part B as persons who were included in the application. Neither of them made separate claims to be a refugee and were included as members of the family unit. The mother signed Part B on behalf of both the daughter and the son (who, as noted above, were then aged 13 and 9 respectively), including the required declaration. This was presumably done by the mother in accordance with the direction in question 20 on page 9 of the Part B pro-forma, which stated:

20    To be signed by all the persons named in Question 1

If any of the applicants who should answer this question and sign the declaration is under 15 years of age or lacks legal authority to sign on their own behalf, a parent or guardian must sign on their behalf, except in the case of unaccompanied minors who may sign on their own behalf.

39    The “Applicant declaration” in question 20 was as follows:

I declare that:

•    The information I have supplied on or with this form is complete, correct and up-to-date in every detail.

•    I understand that if I have given false or misleading information, my application may be refused, and any visa issued may be cancelled.

•    I understand that if this application is approved, any person not included in this application will not have automatic right of entry to Australia by way of this application.

•    In accordance with the Migration Act 1958, I undertake to inform the Department of Immigration and Citizenship of any changes to my personal circumstances (eg. relationship status, changes to the family composition including the birth of a child and change of name) while my application is being considered.

•    I undertake to inform the Department of Immigration and Citizenship if I intend to change my address for more than 14 days while my application is being considered.

•    I authorise the Australian Government to make any enquiries necessary to determine my eligibility for grant of a Protection (Class XA) visa in Australia, and to use any information supplied in this application for that purpose.

•    I understand that information provided by me may be disclosed to third parties as outlined in Part A Authority to disclose information.

•    I have read and understood the information supplied to me in this application.

40    Part C (comprised by Form 866C) in the first protection visa application was completed and signed by the mother. Form 866C was entitled “Application for an applicant who wishes to submit their own claims to be a refugee”. In brief, the mother claimed that her husband had been violent and abusive to her and her children, that the family left South Korea to make a new start and feared further violence from her husband and father of the children if they were to return to South Korea because she feared he would pursue them there.

41    The first protection visa application included two Part D forms (Form 866D) which related to the daughter and son respectively. Part D was the appropriate form for a member of the same family unit who did not have his or her own claims to be a refugee, but who was included in the protection visa application. The pro-forma required the applicant’s signature in respect of two separate matters. The first, in question 28, was a statement which was described as the “Australian Values Statement”. It was in the following terms:

28    AUSTRALIAN VALUES STATEMENT

You must sign this statement if you are aged 18 years or over.

I confirm that I have read, or had explained to me, information provided by the Australian Government on Australian society and values.

I understand:

•    Australian society values respect for the freedom and dignity of the individual, freedom of religion, commitment to the rule of law, Parliamentary democracy, equality of men and women and a spirit of egalitarianism that embraces mutual respect, tolerance, fair play and compassion for those in need and pursuit of the public good;

•    Australian society values equality of opportunity for individuals, regardless of their race, religion or ethnic background;

•    The English language, as the national language, is an important unifying element of Australian society.

I undertake to respect these values of Australian society during my stay in Australia and to obey the laws of Australia.

I understand that, if I should seek to become an Australian citizen:

•    Australian citizenship is a shared identity, a common bond which unites all Australians while respecting their diversity;

•    Australian citizenship involves reciprocal rights and responsibilities. The responsibilities of Australian citizenship include obeying Australian laws, including those relating to voting at elections and serving on a jury.

If I meet the legal qualifications for becoming an Australian citizens and my application is approved I understand that I would have to pledge my loyalty to Australia and its people.

Signature of Applicant:    [The first and second appellant’s signatures appeared in this part of their respective Part Ds]

42    It is important to note that both the first and second appellants personally signed the “Australian Values Statement” in their respective Part D forms notwithstanding that neither was aged 18 years or over. The direction at the commencement of question 28 did not prohibit persons under the age of 18 years from signing the Australian Values Statement; rather, it required an applicant who was aged 18 years or over to sign the statement.

43    The second matter in Part D which required an applicant to read and sign was the “Applicant’s declarations” in question 30. It was in the following terms:

30    DECLARATION

Note: Section 11 of the Statutory Declarations Act 1959 provides that ‘a person must not wilfully make a false statement in a statutory declaration’, and provides a maximum penalty of 4 years imprisonment.

WARNING: Giving false or misleading information is a serious offence.

Please read and sign this declaration

I

(1)    [the name and address of the first or second appellants was given here in their respective Part Ds]

do solemnly declare:

•    The information I have supplied on or with this Part C of the Form 866 is complete, correct and up-to-date in every detail.

•    I have never been convicted of a crime or any offence in any country except as shown in Schedule A.

•    To the best of my knowledge, I am not the subject of any criminal investigation, and there are no criminal charges pending against me except as shown in Schedule A.

•    I have not been acquitted of an offence on the grounds of unsoundness of mind or insanity.

•    I do not have any spent convictions under any spent convictions legislation in any country or any convictions on my police record.

•    I have not been involved in war crimes or crimes against humanity such as killing, torture, enslavement, starvation or other inhumane acts committed against civilians or prisoners of war.

•    I have never been associated with anyone else who has been or could reasonably be suspected to have been, or is, involved in any activities referred to above.

•    To the best of my knowledge I do not have any matters which are either unresolved or in which I have been, or am involved, that would bring into question whether or not I pass the Character Test (see explanation this page) as defined at section 501 of the Migration Act 1958.

•    I understand that if I have given false or misleading information, my application may be refused, and any visa issued may be cancelled.

•    I understand that if this application is approved, any person not included in this application will not have automatic right of entry to Australia by way of this application.

•    In accordance with the Migration Act 1958, I undertake to inform the Department of Immigration and Citizenship of any changes to my personal circumstances (eg. relationship status, changes to the family composition including the birth of a child and change of name) while my application is being considered.

•    I undertake to inform the Department of Immigration and Citizenship if I intend to change my address for more than 14 days while my application is being considered.

•    I authorise the Australian Government to make any enquiries necessary to determine my eligibility for grant of a Protection (Class XA) visa in Australia, and to use any information supplied in this application for that purpose.

•    I consent to the Australian Government making inquiries with the relevant authorities regarding my immigration or status in those countries, in which the Australian Government suspects that I may have temporarily or permanently resided in, other than the country(s) I claim to fear persecution from.

•    I understand that my personal identifiers and my biographical information held by the Department of Immigration and Citizenship may be given to Australian law enforcement agencies to help identify me, to help determine my eligibility for grant of a Protection visa and for law enforcement purposes. I consent to:

-    Australian law enforcement agencies disclosing my personal identifiers and biographical and criminal record information to the Department of Immigration and Citizenship for any of the purposes outlined above; and

-    the Department of Immigration and Citizenship using the information obtained for the purposes of the Migration Act 1958 or the Australian Citizenship Act 2007.

And I make this solemn declaration by virtue of the Statutory Declaration Act 1959, and subject to the penalties provided by the Act for the making of false statements in statutory declarations, conscientiously believing the statements contained in this declaration to be true in every particular.

(2)    [The signature of the first or second appellants appeared here in their respective Part Ds]

(3)    [The signature of a solicitor appeared here in both the first and second appellant’s Part Ds]

(4)    [In both Part Ds the witness was a NSW Solicitor]

We strongly advise that you keep a copy of your application and all attachments for your records.

Notes

(1)    Here insert name, address and occupation of the person making the declaration.

(2)    Signature of person making declaration.

(3)    Signature of person before whom declaration is made (a person employed by the Commonwealth for a continuous period of 5 years or more is a person before whom the declaration may be made). The department can advise of other people eligible to witness this Statutory Declaration if necessary.

(4)    Here insert title of person before whom the declaration is made (eg public servant referred to at note 3 above).

44    To sum up, notwithstanding that, on 11 November 2011, the daughter and son were only aged 13 and 11 respectively, each personally signed the Australian Values Statement in question 28 as well as the Applicant’s declarations in question 30 of their respective Part D forms. Their signatures were witnessed by the solicitor/migration agent who was identified in question 14 of Part B as having given assistance in completing that form.

45    It might also be noted that, in contrast with the direction contained in question 20 in Part B (which required a parent or guardian to sign the “Applicant declaration” if any of the applicants who should answer the question and sign that declaration were under 15 years of age or lacked legal authority to sign on their behalf, except in the case of unaccompanied minors who could sign on their own behalf), there was no such direction given in relation to the Applicant’s declarations in question 30 of Part D.

46    These matters may be relevant to the operation of reg 2.07(3) and the obligation on an applicant to complete an approved form in accordance with any directions on it (see [33] above).

47    The second protection visa application also comprised Parts B, C and D, all of which were approved forms at the relevant time. Part B comprised Form 866B. It was stated in the footer that the design of that pro-forma was dated July 2014. Part B was entitled “Persons included in this application and family composition”. It was signed by the daughter and dated 1 August 2014 and was recorded as having been received by the Department on 12 August 2014. The daughter, her brother and her mother were all identified as persons who were included in the application. It was stated that the mother had previously applied for refugee status or protection visa on 17 November 2011. It was also stated that both the sister and her brother had previously applied for student visas. On page 10 of Part B, there was a direction in question 23 that all the persons who were included in the application had to sign the “Applicant declaration”. The pro-forma contained the same statement regarding persons under the age of 15 or lacking legal authority to sign on their own behalf as appeared in question 20 in Part B of the first protection visa (see [38] above). The terms of the declaration were also similar to those in the first protection visa application (see [39] above).

48    The daughter also signed the “Declaration of Truth”, which was on page 1 of Part B of the second protection visa application. It was in the following terms (emphasis in original):

Declaration of Truth

1    Australians value honesty and fairness. The department is committed to treating you with honesty and fairness and expects in return that you will tell the truth in this application.

As the primary applicant you are required to make a declaration that you will tell the truth in your application.

WARNING: Giving false or misleading information is a serious offence.

Declaration

•    I declare that the information I will provide in this application is truthful and honest in every way.

•    I understand that if I give false or misleading information, this application may be refused, and any visa issued may be cancelled.

49    Beneath that Declaration of Truth appeared the daughter’s name, her signature and the date, being 1 August 2014.

50    The “Applicant declaration” on page 10 of Part B was signed by the daughter in her own right, the mother in her own right and the mother on behalf of the son. There is a handwritten note under the declarations which states “Mothe [sic] signed for [son] – in loco parentis”.

51    Part C, which was on Form 866C, was filled out and signed by the daughter, including the Declaration of Truth (which contained similar terms to the Declaration of Truth in Part B) and the “Applicant’s declaration” in question 68 (which also contained similar terms as the Applicant’s declaration in question 20 in Part B). Part C related to an applicant who submitted their own claim for protection. In brief, the daughter claimed that she feared harm from her father given his history of violence. The page containing question 48 (which asked “Why do you think this will happen to you if you go back?”) included the following handwritten statements (without alteration):

Have lived in Australia during most formative years. Applicant seeks to emphasize neither she nor to the best of her knowledge her brother had any idea as to inclusion in a protection visa application. Had NO awareness of the conduct/actions of previous solicitor – as particularized by Affidavits filed in High Court (with respect to mother

The issue of awareness as to circumstances of previous application most relevant. Circumstances more compelling than that presented in Kim

52    There was also another Part C pro-forma in relation to the brother. This was on Form 866C and was signed by the mother acting in loco parentis, including the Applicant’s declaration in question 68. On page 9, there was a handwritten statement that the son repeated the submission of his sister in her Part C. There was another handwritten statement as follows:

Firstly given the age of the Applicant and circumstances of lodgement – the Applicant did not have any idea that they (sic) were formally included in a protection visa. Rather the mother… made application in circumstances where it may even be asserted that as at time of lodgement of application she did not have any idea as to the meaning and consequences of the protection lodgement.

The mother… indicates she included her children in her application (upon a Part D basis). She did not explain the fact she was proceeding with this type of application to the children, indeed [the son] was only 9 at the time.

53    Part D, which was entitled “Application for a member of the family unit” (Form 866D), was completed and signed by the mother in her own right.

Proceedings before the FCCA

54    The grounds of the application to the FCCA were in the following terms, as amended:

1.    The Delegate’s decision of 15 August 2014 made a jurisdictional error by failing to exercise jurisdiction.

Particulars

a.    The Delegate considered the Second and Third Applicant's application not to be valid.

b.    The basis for invalidity identified by the Delegate was s 48A of the Migration Act 1958 (Cth) (Act).

c.    The Delegate was wrong to invoke s 48A of the Act which, in accordance with the judgment of the Full Federal Court in Minister for Immigration and Border Protection v Kim (2014) 221 FCR 223 (sic) (Kim), did not apply on the ground that the Third Applicant was unaware of the prior application of the First Applicant of 17 November 2011.

d.    The amendment to insert subsection (1AA) of s 48A by item 3 of Sch 1 to the Migration Legislation Amendment Act (No 1) 2014 (Cth), No 106 of 2014 (2014 Act) does not cure the Delegate's jurisdictional error as under item 6(3)(a) of Sch 1 to the 2014 Act the amendment does not apply to the Second and Third Applicant's application, which was made on 12 August 2014, prior to the commencement day of the amendment on 25 September 2014.

55    There are two points to be made about the amended application. First, the references to the “First, Second and Third Applicants” appear to be in error. The applicants below were respectively the daughter (SZVBN), the son (SZVBO) and the mother (SZVBP) but they appear to be misidentified in ground 1 of the amended application. Secondly, it appears that particulars (c) and (d) of the amended application provided the basis for the wording of the separate question which the primary judge ordered be heard in advance of any other questions. For reasons which will be developed below, I consider that this wording is unfortunate and obscured the central issue, being the proper construction of s 48A of the Act in the context of the particular circumstances of this case.

56    It was common ground, both below and on the appeal, that the daughter and the son were unaffected by the amendments brought about by the Migration Legislation Amendment Act (No 1) 2014 (Cth) to insert s 48A(1AA) into the Act.

57    In SZVBN at first instance the FCCA made orders as follows:

(1)    The applicants are granted leave to rely upon their amended application filed on 1 October 2015.

(2)    Pursuant to rule 17.02 of the Federal Circuit Court Rules 2001 (Cth), the following question is to be decided separately and before any other questions in the proceedings:

Does the requirement of knowledge of a visa application which the Full Court of the Federal Court in Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523 concluded was required by s 48(1)(b)(i) of the Migration Act 1958 (Cth) (Migration Act), in the form in which it stood prior to the commencement of the Migration Legislation Amendment Act (No 1) 2014 (Cth) (Amendment Act), applies (sic) equally to s.48A(1) of the Migration Act, in the form in which it stood prior to the commencement of the Amendment Act, in circumstances where a child who makes an application for a protection visa had previously been included, without his or her knowledge, in an application for a protection visa as a member of the family unit of his or her parent?

(3)    The answer to the question is "no".

(4)    The application filed on 15 September 2014 is dismissed.

58    The primary judge noted, at [12], that the factual issue concerning the knowledge of the daughter and, I assume, of the son, of the earlier protection visa application would be the subject of a factual contest.

59    Having set out the parties’ submissions, the primary judge, at [66]-[71], concluded that the decision in Kim concerning the operation of s 48 did not similarly qualify the operation of s 48A as it stood at the relevant time.

60    The primary judge said that the two sections served somewhat different purposes and had a different legislative history.

61    Further, legislative amendments in response to the decisions of Full Courts in Dranichnikov v Minister for Immigration and Multicultural Affairs [2001] FCA 769; 109 FCR 397 (Dranichnikov) and Soondur v Minister for Immigration and Multicultural Affairs [2002] FCAFC 324; 122 FCR 578 (Soondur) precluded the proposition that the inclusion of a person in an application as a member of the applicant’s family unit was not the making of an application for a protection visa under s 36. Following those amendments, the primary judge said, at [68], the inclusion of a person in an application, as a member of the family unit of the applicant, does involve the “making” of a protection visa application. This was subject to the visa application being a valid one, but there was no doubt that a valid protection visa application may be made on behalf of the child.

62    The primary judge next considered, at [69], the decision of the Full Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235 (SZGIZ) and the legislative amendments in response to that decision. The primary judge said, at [70], that the express amendment of s 48A to preclude a person who has been included in a protection visa application as a member of the family unit of an applicant, from making his or her own protection visa application subsequently, left no room for the application of the decision in Kim.

63    Finally, the primary judge said, at [71], that circumstances producing injustice under s 48A may be dealt with by the Minister pursuant to his discretion under s 48B. The primary judge said that the focus of the Minister's attention in the exercise of that discretion was the public interest, but an element of the public interest was served by the prevention of unfairness or injustice.

64    Having answered the separate question in the negative, the primary judge proceeded to dismiss the amended application for judicial review.

The appeal

65    The single ground in the notice of appeal to this Court is as follows:

1.    The primary judge erred by concluding that the reasoning of this Court in Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523 was not applicable to s 48A(1) of the Migration Act 1958 (Cth) (Act), in circumstances where a child who makes an application for a protection visa had previously been included, without his or her knowledge, in an application for a protection visa as a member of the family unit of a relative.

66    The Minister filed a notice of contention on the ground that the judgment in Kim was plainly wrong.

The parties’ submissions summarised

67    The appellants submitted that the amendment to s 48A to which the primary judge referred in response to the decisions in Dranichnikov and Soondur was itself repealed. As a result, the appellants submitted, the primary judge was wrong to conclude that the express amendment of s 48A in 2001 left no room for the application of the decision in Kim.

68    The appellants also submitted that s 48B was not an adequate remedy for the injustice. That section was exercisable only in the public interest; it must be exercised by the Minister personally; the Minister had no duty to consider whether or not to exercise s 48B; and there was no indication that the injustice of a person being confined to an application for a protection visa of which they had no knowledge would occasionally, let alone frequently and necessarily, give rise to a favourable exercise of s 48B.

69    The appellants submitted that the critical term in s 48A(1) was ‘has made’ and it should be construed to avoid injustice: it was unfair for a person to be visited with the statutory consequence of a previous application of which the person was unaware. In Kim, the appellants submitted, the Full Court construed s 48 and avoided an unjust result. The same approach should be taken to s 48A. Indeed, the appellants submitted, the context of s 48A magnified the injustice which would flow from having the provision extend to a previous application which was not knowingly made. Section 48A, where it applies, prevents a person from claiming the persecution or harm relevant to a protection visa. Where something so detrimental to an individual was potentially at stake, s 48A should not impose silence on the person due to previous claims of which the person did not know.

70    The appellants submitted that the contextual matters referred to by the primary judge were neutral for present purposes. They concerned when an application was validly made so that it may be determined. That concern was quite different from s 48A which was directed to when an application could not be made and was prevented from being determined.

71    The appellants submitted that the Explanatory Memorandum to the Bill that became the Migration Legislation Amendment Act (No 6) 2001 (Cth), pointing to a stated desire to prevent “members of families pursuing claims for protection one after the other” and “misuse of the protection visa process by family groups wishing to prolong their stay in Australia by lodging protection applications serially”, was no answer to the question of whether s 48A was intended to operate so unjustly that a family member could be caught by an application of which they were unaware or could not comprehend. The appellants made a similar submission in relation to the explanatory material relevant to the Bill that became the Migration Amendment Act 2014 (Cth), which referred to a desire to prevent “persons who were refused as members of another person's family unit… and who did not raise their own protection claims at the time… from making a further protection visa application relying on their own protection claims”.

72    The Minister submitted the construction of s 48A by the primary judge was correct, in the light of the text and context of that provision. The Minister submitted that Kim was distinguishable and did not govern the construction of s 48A.

73    The Minister submitted that s 48A ought to be construed so that it operated to prevent a non-citizen, whether an adult or a child, from making a repeat application for a protection visa in the migration zone where he or she had previously made a valid application in the migration zone that had been refused.

74    In support of that construction, the Minister identified the following five steps.

75    First, the Minister submitted that a visa application will have been “made” within the meaning of s 48A(1) if it is a valid application as referred to in s 46.

76    Secondly, the Minister submitted the Act did not create, or recognise, any distinction between a visa application made “by” a non-citizen, on the one hand, and one made on his or her behalf, on the other. This was evident from ss 45(1) and 46. Sections 46A and 46B clearly denoted the visa applicant when they referred to applications “made by” certain classes of person. The authority to make an immigration decision in relation to a child is vested in his or her parents, such authority diminishing until the child attains competence: Re Woolley; Ex parte Applicants M276/2003 [2004] HCA 49; 225 CLR 1 (Woolley’s case) at [104], [155]-[156]. In circumstances where the Act and the Regulations did not clarify the position of children, common law principles must be treated as informing the operation of those provisions in the Act and the Regulations that dealt with the making of visa applications. The Act and the Regulations treat the child as the visa applicant himself or herself. Reference was made to regs 2.08, 2.08A and 2.08B. The child in Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; 201 CLR 293 was treated in that way.

77    Thirdly, read in the context of the provisions in Subdiv AA of Div 3 of Pt 2 of the Act, the reference in s 48A(1)(a) to a non-citizen having “made” an application for a protection visa conveyed no more than that the non-citizen was the person by whom, for the purposes of the Subdivision, an earlier valid application is taken to have been made. Section 48A did not draw any distinction between applications made in person and those made by agents. Because in the present case the second protection visa application was validly made in the names of the son and the daughter, having been signed on their behalf by their mother, each of the son and the daughter was a person who “applied for” such a visa; was, thereby, an “applicant”; and “made an application for a protection visa” within the meaning of s 48A(1). The Minister submitted that s 98 of the Act was a good illustration of this point.

78    Fourthly, the Minister submitted the text of s 48A(1)(a) did not dictate a conclusion that, in order for a non-citizen child to be said to have “made… an application for a protection visa”, he or she must have had knowledge, actual or constructive, of his or her first visa application. The language used in each of s 48(1)(b)(i) and s 48A(1)(a) was not identical. The former, considered in Kim, applied to a non-citizen who was refused a visa “for which the non-citizen had applied”. Section 48A plainly, the Minister submitted, was directed to a visa application validly made. The word “made” did not refer to the non-citizen having “applied” for a visa. Section 48A did not use the language of “applied” considered in Kim. There were also structural differences between the two provisions: s 48 was a qualified permission which applied generally and focused on the applicant personally. Section 48A, on the other hand, applied only to one class of visa and was a general prohibition on the making of repeat applications for that class. The policy to which s 48A gave effect was that, in general, the Minister was only required to consider a person’s claims for protection once. The importance and strictness of that policy were reflected in the amendments to s 48A made by the Migration Legislation Amendment Act (No 6) 2001, the substance of which was retained in the current provision; the insertion of s 48A(1C) by the Migration Amendment Act 2014 to overcome the decision of the Full Court in SZGIZ; and the limits imposed by s 50. Sections 48 and 48A were enacted at different times and each had a different legislative history.

79    Fifthly, the Minister submitted the context, purpose and legislative history of s 48A militated against the construction for which the appellants contended. The mischief to which s 48A was directed was the making of repeat protection visa applications. So much was acknowledged in Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127; 244 FCR 366 (SZVCH) at [5], [16], [102]-[105] and [116]. The Minister submitted that Mortimer J, in particular, discussed the legislative history of s 48A and observed, at [105]:

… that the Parliament's intention in s 48A, by the use of the phrase "application for a protection visa" in s 48A(1), is to prevent any further application for the class of visa known in the Act as a protection visa, by any person included in the former application. That intention is, in my respectful opinion, also clear from the use of the word "or" in what I see as the inclusive but not exhaustive list in s 48A(2)(a). It is also consistent with the general scheme of the Migration Act, which I have set out above.

80    By way of legislative history, the Minister referred to the Migration Legislation Amendment Act (No 6) 2001 (Cth) and to [15] of the Explanatory Memorandum to the relevant Bill. The Minister submitted that the fact that ss 48A(2)(aa) and (ab) were replaced in 2011 by a new subpara (aa) did not detract from the relevance of the 2001 amendments since the new provision in the definition of “application for a protection visa”, added by the Migration Amendment (Complementary Protection) Act 2011 (Cth), did not do away with the work done by the 2001 amendments. Nor did the 2014 amendments to s 48A(2). On the contrary, the extrinsic material confirmed that s 48A would operate to prevent a member of the primary visa applicant's family unit from making a further visa application relying on their own claims for protection.

81    The Minister submitted the immediate statutory context, consisting of ss 46A, 46B and 48B, supported his construction of s 48A. Sections 46A and 46B used language similar to that which was used in s 48A and were directed to the legal status of a visa applicant. Importantly, the Minister submitted, s 48A was subject to s 48B which empowered the Minister to “lift the bar”. Section 48B constituted a legislative choice as to how the potentially harsh consequences of s 48A were to be dealt with and strongly indicated an intention that the terms of the provision were to be given their full effect. The Minister submitted that the appellants' submissions by reference to notions of inconvenience and injustice did not pay sufficient regard to the text and context of s 48A(1).

82    The Minister submitted that his notice of contention needed to be dealt with only if, contrary to his primary submission, Kim stood in the way of the construction of s 48A adopted by the primary judge.

Consideration and disposition of the appeal

83    At the outset, I should explain why I consider the wording of the separate question to be both unfortunate and a distraction from the resolution of the central issue of statutory construction in this case. As noted above, the separate question seems to have been drafted to reflect the terms of particular (c) in ground 1 in the amended application in the FCCA (see [54] above). Accordingly, prominence is given in the wording of the separate question to the Full Court’s decision in Kim and the finding there that, for s 48 of the Act to apply to render not valid an application for a visa which included a child applicant, the child had to have knowledge that he or she had been involved in an earlier unsuccessful application for a visa. In effect, the separate question asked whether this requirement of knowledge also applied to s 48A which, in contrast with s 48, dealt specifically with protection visas.

84    There are several difficulties with the wording of the separate question. First, instead of putting at the forefront of the question the proper construction of s 48A of the Act, as in force at the relevant time, primary emphasis was placed on Kim which related to a different statutory provision, namely s 48. As the Minister pointed out, the relevant text, scope and history of ss 48 and 48A were quite different.

85    Secondly, I consider that the emphasis which was given in both the amended application and in the separate question to the word “knowledge”, which the Full Court had used in Kim in the particular circumstances of that case, expressed too narrowly the central legal and related factual issue in this proceeding. That central issue, as is reflected in the way in which the parties conducted this appeal, is whether the Departmental officer fell into jurisdictional error in determining that s 48A applied to prevent the daughter and son from making the second protection visa application in circumstances where they were disputing that their mother had legal authority to include them in the first protection visa application. This dispute was based on the claims of both the daughter and son that they had no knowledge that they had been included in the first protection visa application. The issue of knowledge on the part of a dependent child will generally be tied up with the issue of that child’s legal capacity or competence at the relevant time. Mr Kennett SC (who appeared together with Mr Kaplan for the Minister on the appeal) submitted that it had to be inferred that the statutory regime “assumes the operation of general law principles relating to parental powers and responsibilities” (such as those discussed in Woolley’s case and Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15; 175 CLR 218 (Marion’s case)). As those cases demonstrate, the issue of parental authority viz a viz a dependent child is inextricably linked to the issue of the child’s emerging legal capacity and competence in his or her own right (see further [132] ff below).

86    In my respectful view, the separate question was expressed too narrowly. The focus for present purposes should be on the question of the mother’s legal authority to include her children in Part B of the first protection visa application, having regard to the age and competency of the children and their claim that they had no knowledge of their inclusion in the first protection visa application, and the consequences of these matters for the application of s 48A to their situation. This would require appropriate findings to be made on these matters before an informed determination could be made as to the application of s 48A to the particular circumstances of the daughter and son in this family unit.

87    The difficulties and problems which can arise when proceedings are conducted by way of separate questions are well known (see, for example, Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 at [49]-[59] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ). In view of the shortcomings in the terms of the separate question, I consider that the appeal should be determined on the basis of whether the primary judge’s reasons for dismissing the application for review filed in the FCCA on 15 September 2014 involve appealable error. This necessarily raises for determination the central issue of the proper construction of s 48A of the Act. In case leave is required to appeal from the order dismissing the application, based upon the primary judge’s answer to the separate question, I consider that such leave should be granted.

88    I consider that the primary judge erred in his construction of s 48A. In summary, my reasons and conclusions are as follows:

(1)    The text and structure of s 48A as in force at the relevant time direct primary attention to the person who “has made” a previous application for a protection visa, which necessarily raises questions concerning the legal competence of such a person. Reflecting the fact that the provision is written in the active voice, its focus is on the person (and not just on the fact that an application has been made). This is further reinforced by the latter part of s 48A which operates to prevent a person from making a further application for a protection visa in the specified circumstances.

(2)    While it is clear that amendments to s 48A made by the Migration Legislation Amendment Act (No 6) 2001 (Cth) reverse the decision of the Full Court in Dranichnikov, there is nothing in either the text or extrinsic materials relating to those amendments to indicate any intention to address any issue concerning the legal competence of a dependent child to “make” an application for a protection visa for the purposes of the bar created by s 48A.

(3)    The majority of the Full Court in Soondur held that before it can be determined that a person “has made” a previous application for a protection visa, there must be a factual enquiry as to the age of that person and as to his or her capacity to understand the nature of such an application.

(4)    The majority’s construction of this aspect of s 48A in Soondur should be adopted and applied in the circumstances of this appeal. Despite several series of amendments to s 48A after the time of the events which gave rise to Soondur, there is nothing in the text of those amendments or in the accompanying relevant extrinsic materials to indicate any intention to reverse this aspect of the reasoning in Soondur. This position changed with the amendments which were made to both ss 48 and 48A by the Migration Amendment Act 2014 (Cth), following the Full Court’s decision in Kim, but those amendments do not apply to this appeal.

(5)    The proper construction of s 48A and its application to the circumstances in this appeal is not assisted by the reasoning of the Full Court in Kim, which was directed to a differently-worded statutory provision with a different scope and history, namely s 48.

(6)    Having regard to the proper construction of s 48A, as in force at the relevant time, it will be necessary for the FCCA on the remitter to make appropriate findings concerning the legal competence and understanding of the first and second appellants when the first protection visa application was made.

(a) Some textual and structural considerations

89    The text and structure of s 48A(1) is significant, including the fact that it is written in the active, and not the passive, voice. The focus of the provision is on a person of a particular status, namely a non-citizen who, while in the migration zone, has done something, namely “has made” an application for a protection visa. The focus of the provision on a person who has that particular status is further underlined by the latter part of the provision, which prevents the person who is a non-citizen from making a further application for a protection visa while in the migration zone where a previous application for a protection visa has been refused. Section 48A(1) operates not by reference to the validity of a protection visa application, but rather on the person who has made a protection visa application and who has a particular status. These textual and structural matters direct attention to the question whether the relevant person had the necessary competence to “make” such an application. In the case of a dependent child, it may well be that a parent or guardian has authority to make an application for a protection visa on behalf of that child. But whether or not that is the case will depend on the particular facts and circumstances of that parent/guardian and the dependent child. This requires an assessment to be made of whether the authority of the parent/guardian was affected at the relevant time by any emerging legal competence or capacity on the part of the child. Consideration needs to be given to such matters as the age of the child, their knowledge of the application and its contents, and the child’s level of comprehension or understanding concerning the nature of such an application.

(b) Dranichnikov and the significance of the 2001 amendments to s 48A

90    In 2001, s 48A was amended to overcome the Full Court’s decision in Dranichnikov. At that time s 48A provided:

(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.

...

(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 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.

91    In Dranichnikov, the appellant’s husband had lodged an “Application for a Protection Visa (866)” in the prescribed form in April 1997, on the ground that he was a refugee to whom Australia had protection obligations under the Refugees Convention. The appellant and her 9 year old daughter were named in the husband’s application as members of his family unit. The husband’s application was refused and subsequently the appellant wife attempted to lodge a further “Application for a Protection Visa (866)” in the prescribed form making a claim to be entitled to a protection visa in her own right as a refugee, as defined in the Refugees Convention.

92    The Full Court held that s 48A did not prevent the appellant wife from lodging her own application and the Department was in error to consider it as not being valid. The Full Court held (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.

93    As noted above, the purpose of the amendments to s 48A contained in the Migration Legislation Amendment Act (No 6) 2001 (Cth) was to preclude the kind of application the Full Court had found valid in Dranichnikov. In the Second Reading Speech (Australia, House of Representatives, Debates (2001) at p 30423-30424), the Minister said:

As well, the act [sic] will be amended to make clear that protection visas can be granted to spouses and dependants in Australia of a person found to be owed protection obligations even though the spouse and dependants did not have personal claims for protection. However, consequential changes are then made by the legislation to make it clear that provisions in the Migration Act that bar repeat protection visa applications relate also to a person who has not raised protection claims in their first protection visa application. Without this provision, dependants of an unsuccessful protection visa applicant who had chosen not to advance protection claims when given the opportunity to do so could apply again making such claims. Potentially, family members could apply for protection with each member taking turns to be the one advancing protection claims – in other words, it can be used as a device to ensure that family groups remain in Australia by pursuing application after application. This could prolong a family’s stay in Australia for years as each applicant in turn applies and pursues appeals. The bill will extend the bar on repeat applications to ensure that all family members included in a protection visa application will be barred from making another application for a protection visa.

94    The Explanatory Memorandum to the Migration Legislation Amendment Bill (No 6) 2001 stated at [15]:

These changes 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.

95    There are two points to be made about these extrinsic materials. First, it is notable that Dranichnikov did not involve any issue concerning the legal competence of the 9 year old daughter who was included in the protection visa application there as a member of the family unit. Secondly, while it is evident from these extrinsic materials that the mischief the subject of the 2001 amendments was to prevent “misuse” of the protection visa process by family groups who could prolong their stay in Australia by lodging serial protection visa applications, there is nothing in either the text of the 2001 amendments or the accompanying extrinsic materials to suggest that the amendments were intended to address any issue concerning the legal capacity of a dependent child. That issue did not arise in Dranichnikov but it did arise in the Full Court’s subsequent decision in Soondur, to which I will return shortly. Soondur was decided after the 2001 amendments commenced but in circumstances where those amendments had no application to the relevant events in that case.

96    As noted above, in the appeal the Minister relied on Mortimer J’s observations in SZVCH at [105] concerning the legislative history to the 2001 amendments. Her Honour’s observations are set out in [79] above. There are several points to note about those observations. First, it is plain that they were not directed to the question which arises in this case where a child claims to have had no knowledge of a previous protection visa application in which he or she was included as a member of the family unit and there is an issue as to the authority of a parent to make such an application on the child’s behalf. No such issue arose in either Dranichnikov, which was overridden by the 2001 amendments, or SZVCH itself. Secondly, her Honour’s observations, if read literally, make no allowance for the potential operation of other exceptions to “the general scheme” of the Act, including those relating to fraud by a third party (see SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189). Thirdly, the observations are obiter and were not the subject of any analysis or discussion by the other four members of the Full Court in SZVCH. In my respectful view, the observations do not assist in the resolution of the central issue of construction in this appeal.

(c) The Full Court’s decision in Soondur

97    It is desirable to say something more about the Full Court’s decision in Soondur. In that case, the first appellant was the mother of the second and third appellants. The mother lodged a protection visa application in April 1992, which application was refused on 28 February 1996. The mother then lodged a second protection visa application on 19 December 2000. She claimed to be entitled to a protection visa on the ground that she was a refugee to whom Australia had protection obligations. She also claimed that the second and third appellants were entitled to protection visas as members of her family unit. A Departmental officer refused to accept the second protection visa application, relying on s 48A of the Act. The appellants sought a judicial review of this decision in the Federal Court. Their application was dismissed at first instance.

98    In the appeal to the Full Court, the second appellant sought to challenge the officer’s decision concerning the application of s 48A claiming that the second protection visa application was an application made by her in her own right and that the Minister was obliged to consider it. Section 48A was relevantly in the same terms as in Dranichnikov. Justice Gray, with whom Goldberg J agreed, held that, for the purposes of s 48A, the inclusion of a person of the family unit of an applicant was not of itself the making of an application by the person included. It followed that the second appellant was not precluded from making another protection visa application in his or her own right and s 48A did not render such an application to be invalid. Justice Carr dissented. In doing so, his Honour was critical of the reasoning in Dranichnikov.

99    Justice Gray considered that the reasoning in Dranichnikov was correct and that the Full Court’s decision should be followed in a case where the 2001 legislative amendments did not apply, as was the case there. His Honour noted at [34] that the Minister did not ask the Court to depart from the principle in Dranichnikov, indeed the Minister relied on it.

100    Justice Gray stated at [30] that it was preferable to characterise the officer’s decision, which was conveyed in a letter dated 22 December 2000, as a determination pursuant to s 46(1)(d) of the Act that the second protection visa application was prevented by s 48A and was therefore not a valid application. His Honour added that such a decision was a judicially reviewable decision. He added at [31] that the decision gave rise to questions of construction, including in particular of the meaning of the word “made” in s 48A(1) (as in force at the relevant time). His Honour added that it was also necessary to consider the need to make findings of fact concerning any previous protection visa application and the application of s 48A, properly construed to the facts found.

101    His Honour then turned his attention at [32]ff to the issue whether the second appellant “has made” a previous application for a protection visa. His Honour said that this question contained the following steps.

(1)    Consideration of the relevant requirements of the Act and the Regulations as they stood in December 2000 to the making of such an application. This required consideration of s 46(4)(b) of the Act, reg 2.07 and item 1126, which governed how the application was required to be made. This would also include consideration of whether the approved form had been used and completed in accordance with any directions on it (as required by reg 2.07(3)).

(2)    Consideration also needed to be given to what was applied for, noting that cl (3)(c) of item 1126 in Sch 1 to the Regulations recognised the possibility of an application for a protection visa on the ground that the applicant claims to be a member of the family unit of a person who is an applicant for such a visa. His Honour noted the distinction between a person making a claim in his or her own right and a claim to be a member of the family unit of a person with a claim in his or her own right and that there appeared to be nothing to prevent both claims from being pursued.

(3)    Importantly, at [35]-[38], Gray J identified a third step in determining whether an applicant “has made” a previous application for the purposes of s 48A. Because of their significance to the appeal, it is desirable to set out [35] to [38] of Gray J’s reasons for judgment in Soondur, which relate to the meaning of the phrase “has made” in s 48A as it then stood (emphasis added):

35    Of particular relevance to a case such as the present is a further element that must be considered in determining whether an applicant “has made” a previous application. It is trite to say that an act generally only has legal effect if the mind of the person performing it accompanies its performance. The making of a purported application by a person who lacks capacity to make such an application will not be regarded as an application. At common law, infants (ie persons under the age of twenty-one) were regarded as lacking capacity to do many things, particularly to enter into contracts other than certain defined classes of contracts. Commonly, the age of majority has been reduced by statute to eighteen. There is statutory recognition of the potential incapacity of a person not of full age who has come to Australia unaccompanied by an adult. Section 6 of the Immigration (Guardianship of Children) Act 1946 (Cth) provides that the Minister shall be the guardian of the person and of the estate of such an infant. See X v Minister for Immigration & Multicultural Affairs [1999] FCA 995; (1999) 92 FCR 524. Further, Part B of form 866 contains the instruction:

To be signed by all the persons named in question 1.

If any of the applicants who should answer this question and sign the declaration is under 18 years of age or lacks legal authority to sign on their own behalf, a parent or guardian must sign on their behalf.

36    Part D of the same form above the box reserved for signature, contained the following instruction:

To be signed by the applicant. If the applicant is under 18 years of age or lacks legal authority to sign on their own behalf, a parent or guardian must sign on their behalf.

37    These instructions make it clear that want of full legal capacity, resulting from being under eighteen years old, is seen as relevant to the making of an application for a protection visa.

38    With respect to the making of applications pursuant to the Migration Act generally, the situation seems to be that it is necessary to enquire whether a particular non-adult applicant in fact had capacity (in the sense of sufficient understanding of the nature of the act involved) to make an application, at the time when the application was made. See Munkayilar v Minister for Immigration & Multicultural Affairs (1997) 49 ALD 588 at 591- 592, Al Raied v Minister for Immigration & Multicultural Affairs [2001] FCA 313 at [36]-[39] and Jaffari v Minister for Immigration & Multicultural Affairs [2001] FCA 1516 at [37]. Thus, before it can be determined that a person “made” a previous application, there must be a factual enquiry as to the age of that person and as to his or her capacity to understand the nature of such an application.

102    Justice Gray’s observations in these paragraphs identify a third relevant step to be considered which is independent of and additional to the first two steps. Of central significance in the appeal is the issue whether that third step still applies notwithstanding the subsequent amendments to s 48A.

103    In Soondur, Gray J concluded that the Full Court was unable to determine the factual questions raised by the second protection visa application which had not been considered or determined by the primary judge in that case. This included a determination as to the second appellant’s “capacity” to understand the nature of her act, when she signed the second protection visa application. She was 15 years and two months old when she signed the Form 866. Justice Gray acknowledged that it was possible that, upon the making of appropriate factual inquiries, it might be found that the second appellant lacked capacity to understand what she was doing when she signed Parts B and D of the second protection visa application. But, absent appropriate factual inquiries, the result was uncertain. Accordingly, the majority in Soondur rejected the Minister’s submission that it was futile to remit the matter for reconsideration according to law. In my respectful view, these aspects of Gray J’s judgment apply equally to the circumstances of the first and second appellants in this appeal.

104    As noted above, the primary judge in SZVBN at first instance considered that legislative amendments to s 48A precluded the reasoning of the Full Court in both Dranichnikov and Soondur. It is convenient to set out all of [68] of the primary judge’s reasons for judgment (footnotes omitted and emphasis added):

It is true that both sections are directed at the same mischief, that is, multiple visa applications. It is also true that the operation of both sections has been confined by judicial interpretation, as set out in the parties’ submissions. In Dranichnikov the Full Federal Court found that the inclusion of a person in an application as a member of the applicant’s family unit was not the making of an application for a protection visa under s.36 so that the appellant in that case was not precluded by s.48A from making her own protection visa application. The same reasoning was applied by the Full Federal Court in Soondur in circumstances similar to the present. However, the legislative response to those decisions now precludes that proposition. Following those amendments, the inclusion of a person in an application, as a member of the family unit of the applicant, does involve the “making” of a protection visa application. This of course is subject to the visa application being a valid one. In that regard, there is no doubt that a valid protection visa application can be made on behalf of a child.

105    In my respectful view, the primary judge misstated the effect of the legislative amendments to s 48A post the decision in Dranichnikov. In particular, as will shortly emerge, there is nothing in the text of those amendments, or in the accompanying extrinsic materials, which addresses, let alone reverses, the majority’s description in Soondur of the third step relating to the capacity of a minor who is said to have “made” a previous application for a protection visa.

106    It is desirable briefly to summarise the relevant legislative history.

(d) Summary of legislative history of amendments affecting s 48A

107    (i) Migration Legislation Amendment Act (No 6) 2001 (Cth): In brief, the substance of the amendments was as follows:

(1)    Sub-section (1B) was inserted after s 48A(1A). It provided:

(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.

(2)    The following paragraphs were added at the beginning of the definition of “application for a protection visa includes” in s 48A(2):

(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;

(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 dependent 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

…

108    There is no doubt that the amendments were intended to override the Full Court’s decision in Dranichnikov. It was emphasised in the Explanatory Memorandum to the relevant Bill that the proposed amendments minimised what was described as “the misuse of Australia’s protection processes” (at [6]). It was further explained in [7] of the Explanatory Memorandum that it was intended to address the “misuse” by extending the bar in s 48A against a further application for a protection visa. It was then stated:

This will make it clear that the s 48A bar applies to all protection visa applicants, irrespective of whether they have sought the visa because of personal claims for refugee protection or as a family member of such a person. This will prevent members of families pursuing claims for protection one after the other – dragging on resolution of their status for years.

109    There is nothing in the extrinsic materials to indicate that the concerns regarding “misuse” related to any issue relating to the legal authority of a parent to make an application for a visa on behalf of a dependent child or, correlatively, the issue whether a parent has any such authority where a dependent child has attained the status of legal competence in their own right. Moreover, it would be difficult in any event to describe any such issue as giving rise to a “misuse” of Australia’s protection processes.

110    As noted above, the 2001 amendments were enacted and commenced well before the Full Court’s decision in Soondur. There is nothing in the text or extrinsic material which indicates that the amendments were intended to address any issues relating to parental authority and a child’s legal competence as described immediately above.

111    (ii) Migration Amendment (Complementary Protection) Act 2011 (Cth): By this Act, paragraphs (aa) and (ab) of the definition of “application for a protection visa” in s 48A(2) were repealed and the following paragraph was substituted:

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

This amendment, which commenced on 24 March 2012, was essentially consequential upon amendments made by the same amending Act to s 36(2) which introduced the concept of “complementary protection”.

112    As explained in [104] of the Explanatory Memorandum to the Bill (emphasis in original):

The effect of substituted paragraph 48A(2)(aa) is that application for a protection visa includes:

•    an application for a visa, a criterion for which is mentioned in new paragraph 36(2)(a) or (b) (which retains the intention of existing paragraph 48A(2)(aa) or (ab)); and

•    an application for a visa, a criterion for which is mentioned in new paragraphs 36(2)(aa) or (c) (which deals with complementary protection claims).

113    There is nothing in the text or extrinsic materials to these amendments to indicate that they were intended to address the third step identified by Gray J in Soondur.

114    (iii) Migration Amendment Act 2014 (Cth): The amendments to s 48A, which commenced on 28 May 2014, had the following effect:

(1)    The heading to s 48A was repealed and replaced with the following (emphasis in original):

48A    No further applications for protection visa after refusal or cancellation.

(2)    By item 2 of Sch 2, the following provision was added after sub-section 48A(1B):

(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.

(3)    Paragraph (aa) of the definition of “application for a protection visa” in s 48A(2) was repealed and the following was substituted:

(aa)    an application for a visa that, under this Act or the Regulations as in force at any time, is or was a visa of that class known as protection visas.

(4)    Item 5(1) of Sch 2 provided that the amendments applied whether the refusal or cancellation referred to in sub-section 48A(1) or (1B) happened before, on or after the commencement of item 2 of the Schedule.

115    The Explanatory Memorandum to the Migration Amendment Bill 2013 stated that the amendments clarified “that section 48A of the Migration Act prevents a non-citizen who has been refused a protection visa (or has had a protection visa cancelled) from applying for a further protection visa while in the migration zone”. It was further stated that the amendments addressed issues arising from the Full Court’s decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; 212 FCR 235. The outcome in that case was described on page 2 as being:

… 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 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”.

116    Again, it is notable that there is nothing in the text or the extrinsic material which indicates that the amendments were intended to address the third step identified by Gray J in Soondur.

117    It is also notable that the amendments were made almost 12 years after Soondur. It can be assumed that the Parliament was aware of that decision and, in particular, the third step identified by Gray J in [35] to [38] of his Honour’s reasons for judgment.

118    (iv) Migration Legislation Amendment Act (No 1) 2014: The relevant amendments to s 48A, which are in Sch 1 to this Act, commenced on 25 September 2014. Accordingly, they have no application to either the first or second protection visa applications here.

119    In contrast with the earlier amendments discussed above, it is plain that these amendments were intended to address the issue of a visa applicant’s knowledge or understanding of the nature of a protection visa application, for the purposes of both s 48 and s 48A of the Act. Although no express reference is made in the Explanatory Memorandum to the Full Court’s decision in Kim, it is evident that the amendments were intended to overcome that decision with reference to the operation of s 48 of the Act, and also to preclude the reasoning in Kim being extended to s 48A.

120    Sub-section 48A(1) was amended by inserting the following new provision:

(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.

121    The policy intention underlying this amendment to s 48A is reflected in [13] of the Explanatory Memorandum to the Bill:

13.    The purpose of this amendment is to clarify that a person to whom subsection 48A of the Act applies will be prevented from having a further visa application made on his or her behalf while they are in the migration zone, as well as prevented from making a further visa application himself or herself. This amendment addresses the argument that a person is not prevented by section 48A of the Act from making a further application for a protection visa because that further protection visa application will be made by another person on his or her behalf, and puts it beyond doubt that it does not matter whether the further protection visa application is being made by the person in their own right or by another person on their behalf.

(e) The Full Court’s decision in Kim

122    Kim involved an appeal from a decision of the FCCA which quashed a decision of a Departmental officer that s 48 of the Act as it then stood precluded the respondent from applying for a student visa. The officer determined that the student visa application was invalid having regard to ss 46 and 48 of the Act as then in force (the terms of which are set out in [124] below). Their effect was to prevent a non-citizen from applying for a visa in circumstances where he or she had previously been refused a visa for which they had applied. The respondent’s father had previously unsuccessfully applied for a family visa, in which the respondent was included as a member of the family unit. The primary judge found that the respondent was unaware of the previous visa application and did not sign it. The respondent was 14 years and 4 months old when the previous application was made. The primary judge identified the relevant question as whether, at the time the previous visa application was made, the respondent had achieved an understanding and intelligence sufficient to enable her to understand fully what the previous visa application involved and whether she might wish to apply for that visa. The primary judge found that the Departmental officer refused to consider whether the respondent’s father had the authority to make a visa application on her behalf. As the Full Court observed in Kim at [11], the primary judge’s approach appeared to have been influenced by Gray J’s judgment in Soondur.

123    The Minister’s appeal to the Full Court in Kim raised inter alia whether or not the issue of the respondent’s legal capacity or competence and her father’s authority to make the previous visa application on her behalf were properly pleaded or raised.

124    Before summarising the Full Court’s reasons, it is desirable to set out the relevant terms of ss 46 and 48 as in force in January 2013:

46    Valid visa application

(1)    … 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 satisfies the criteria and requirements prescribed under this section; and

(ba)    subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and

(c)    any fees payable in respect of it under the regulations have been paid; and

(d)    it is not prevented by section 48 (visa refused or cancelled earlier) …

…

Note: An invalid application for a visa cannot give rise to an obligation under section 65 to grant a visa: see subsection 47(3).

…

48    Non-citizen refused a visa or whose visa cancelled may only apply for particular visas

(1)    A non-citizen in the migration zone who:

(a)    does not hold a substantive visa; and

(b)    either:

(i)    after last entering Australia, was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the application has been finally determined); or

(ii)    held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);

may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class.

(2) …

(3)    For the purposes of this section (which applies only in respect of applications made while a non-citizen is in the migration zone), a non-citizen who, while holding a bridging visa, leaves and re-enters the migration zone is taken to have been continuously in the migration zone despite that travel.

125    The Full Court concluded that, on the correct construction of s 48 and its application to the circumstances of the case, the respondent’s subsequent visa application was not invalid for the reason that it was prevented by s 48. The steps in the Full Court’s reasoning in reaching that conclusion may be summarised as follows.

126    First, on one view, when the respondent applied for a student visa in January 2013, she was a non-citizen who had applied for a visa within the meaning of s 48 because an application had been made on her behalf by her father some five years earlier, even though, as a matter of fact as found by the primary judge, she knew nothing about it ([33]).

127    Secondly, the purpose of s 48 was to prevent more than one application for a visa in the specified circumstances, but the better construction was that s 48 “is directed to the person and to an application of which the non-citizen had knowledge, rather than an application which merely validly affected the non-citizen or from which the non-citizen would have benefited” ([37]).

128    Thirdly, the Full Court said that it was not taken to any relevant legislative provision which deemed an application of which the non-citizen lacked knowledge to have been made by that non-citizen either for the purposes of s 48 or more generally ([38]).

129    Fourthly, the question of knowledge was not to be answered merely by reference to whether or not the non-citizen was a minor or was not legally capable of entering into a contract of a particular kind because, for example, a person aged say 17 may well have made an application within the meaning of s 48 even if it was made on his or her behalf ([39]). The previous unsuccessful visa application was not one for which the respondent had applied because the respondent did not make that application in circumstances where it was not disputed that the respondent did not sign the visa application, she was unaware of it and her participation in it was undertaken on her behalf by her father ([40]).

130    Fifthly, the Full Court set out the relevant legislative history relating to s 48 of the Act and the mischief to which it was directed, however, their Honours said at [42] that neither the legislative history nor the extrinsic materials were of great assistance to the task of statutory construction in that case.

131    I do not consider that the proper construction of s 48A and its application to the circumstances of this case is assisted by the reasoning in Kim. That reasoning was directed to a differently worded statutory provision, namely s 48, and reflected the particular circumstances of that case. They included the undisputed fact, as found by the primary judge, that the respondent there had no knowledge that her father had included her in an earlier unsuccessful visa application. Accordingly, it is unnecessary to determine the Minister’s notice of contention which raised the correctness of the reasoning in Kim if that reasoning is relied upon in this appeal.

(f) The need for appropriate findings to be made regarding the children’s legal capacity

132    There is, with respect, a helpful discussion of relevant principles concerning the legal authority of parents as guardians of children and the legal capacity of children in the High Court’s decision in Marion’s case. The relevant principles, as summarised in Woolley’s case at [97]-[104] per McHugh J and at [152]-[156] per Gummow J, are as follows:

(1)    in their capacity as guardians of an infant child, parents have the power under the common law to make decisions on behalf of such a child, provided that the child does not have competence to make the decision (Marion’s case at 235-236 per Mason CJ, Dawson, Toohey and Gaudron JJ; at 278 per Brennan J; at 289, 293, 294 per Deane J; at 315 per McHugh J;

(2)    where a child lacks legal capacity or authority, the ordinary rules of the common law authorise the parent or guardian of the child to act on the child’s behalf (Marion’s case at 237-238 per Mason CJ, Dawson, Toohey and Gaudron JJ); and

(3)    as parental authority diminishes, so the child’s legal competence grows and a parent’s authority ends when the child has sufficient intellectual and emotional maturity to make an informed decision (Marion’s case at 237-239 per Mason CJ, Dawson, Toohey and Gaudron JJ; at 293-294 per Deane J; at 316 per McHugh J).

133    The question whether an unaccompanied minor could make a valid application for a protection visa without the intervention of a guardian or parent arose in Jaffari v Minister for Immigration and Multicultural Affairs (No 2) [2001] FCA 1516; 113 FCR 524 (Jaffari). Justice French (as his Honour then was) said at [37]:

37    There is nothing in the Migration Act to say that an unaccompanied minor cannot make a valid application for a visa and more particularly for a protection visa without the intervention of a guardian. The question is one of factual rather than legal capacity. A child who is assisted by a migration agent can make a valid application. A child of tender years who is incapable of comprehending the nature of such an application would be incapable of making it with or without legal assistance. It may be that in such a case questions would arise whether a duty to facilitate an application rested on the relevant State delegate. The reality must, however, be kept in mind that unaccompanied minors seeking asylum are unlikely to be of such tender age as to be incapable of making a valid application if properly assisted.

134    His Honour concluded that there was a valid application for a protection visa in that case because, on the facts, the visa applicant had been properly assisted and there was nothing to suggest that he did not understand the nature of the process which he was undertaking.

135    Shortly before Jaffari was decided, the Full Court had occasion in Al Raied v Minister for Immigration and Multicultural Affairs [2001] FCA 313 (Al Raied) per Moore, Mathews and Mansfield JJ to consider the question whether, as the Act and Regulations then stood, a child could apply for a protection visa. Their Honours noted at [36] that, because s 45 provided that a non-citizen who wants a visa must apply for it and that “non-citizen” was defined to mean a person who is not an Australian citizen, in terms, “any person (whether a child or not) can apply for a visa”.

136    Their Honours referred at [37] to regs 2.08 and 2.08A, which dealt with the circumstances of some children. Regulation 2.08 dealt with the circumstances of a newborn child who was born to an applicant for a visa between the time the application is made and the time when it is decided and that this provision operated to deem the child to be combined with a parent’s application. Their Honours observed at [37] that reg 2.08A “enables, but does not appear to require, an applicant to add to an application for a visa of the specified type as additional applicants, dependent children and a spouse”.

137    After observing in [38] that the question whether a child or infant can invoke a right, pursue a remedy or seek a benefit conferred or provided by a statute, and whether they can do so in their own name, was ultimately “a matter of statutory construction”, their Honours then made the following pertinent observations at [39]:

39    The Act and regulations do not appear to provide a cohesive and comprehensive scheme which makes clear the position of children, and an infant in particular, to apply for a protection visa in their own right or be added to an application of a parent and the position of the child at the various stages of administrative decision making and review. Huang v Minister for Immigration and Multicultural Affairs [2000] FCA 820 illustrates the problems that may arise in relation to the position of children. It is possible that a relevant provision has been overlooked by us given that these comments are made about a matter that was not in issue in this appeal and was not the subject of detailed submissions. However if a relevant provision has not been overlooked then it may be desirable for the statutory scheme to be reviewed and the position clarified.

The Court’s attention was not drawn to any direct legislative response to these observations other than the amendments made to s 48A by the Migration Legislation Amendment Act (No 1) 2014. Mr Kennett SC acknowledged that there is not a comprehensive regime in the Act or Regulations regarding parental authority and the legal capacity or competence of children, apart from provisions such as reg 2.08 which relates to the position of a newborn child, and s 98 of the Act, which is directed to a particular topic, namely the provision of incorrect or false information in an application form. It relevantly provides, in unambiguous terms, that a non-citizen who does not fill in his or her visa application form is taken to have done so if he or she causes it to be filled in or if it is otherwise filled in on his or her own behalf. The clear and explicit terms of s 98 contrasts sharply with the text of s 48A which does not contain a similar deeming provision.

138    Later, in oral address, Mr Kennett SC said:

… the Parliament has chosen not to specify, with any level of detail, the circumstances in which something done by a parent is attributable to a child or something done by a guardian is attributable to the person of whom they are a guardian.

139    For the reasons given above, I consider that, prior to the commencement of the amendments to s 48A introduced by the Migration Legislation Amendment Act (No 1) 2014, the proper construction of the phrase “a non-citizen who, while in the migration zone, has made… an application for a protection visa” within the meaning of s 48A of the Act is that which is reflected in [35] to [38] of the judgment of Gray J in Soondur (with which Goldberg J expressly agreed).

140    It is a matter of particular relevance that the central issue of construction in the appeal arises in circumstances where two of the three applicants for the first protection visa were children who had not attained the age of majority. As noted above, on 17 November 2011 the daughter was aged 13 and her brother was aged 9. As Gray J correctly emphasised in Soondur at [35], the relatively young ages of the children provides a further element which has to be considered in determining whether either the first or second appellants “has made” a previous application for a protection visa. I respectfully agree with his Honour’s further observation that the making of a purported application by a person who lacks capacity to do so will not be regarded as an application by that person.

141    For the purposes of considering and determining the possible application of s 48A of the Act as in force at the relevant time, appropriate findings will need to be made concerning the capacity and understanding of the first and second appellants when the first protection visa application was made, including whether they had any knowledge of the fact that they had been included in the application. Presumably, findings will need to be made concerning the children’s appreciation and understanding as to the nature and implications of the first protection visa application generally, as well as their capacity to comprehend the Australian Values Statement and Applicant’s declaration in items 28 and 30 of Part D, both of which were signed personally by the first and second appellants respectively. This will necessarily involve findings being made as to the circumstances in which their signatures came to appear in these parts of Part D and how that apparent fact can be reconciled with their denial of any knowledge on their part that they were included in the first protection visa application. It may be that these inquiries reveal that some of these events occurred because of the requirements of reg 2.07(c), but currently that is mere speculation. Absent relevant findings of fact, it is entirely unclear at present whether or not there is a proper factual foundation for s 48A to apply to the particular circumstances of the first and second appellants.

142    For completeness, it should be clarified that no issue arises in the appeal concerning the position of minor unaccompanied children and the position of the Minister as their guardian under the Immigration (Guardianship of Children) Act 1946 (Cth). Furthermore, it should be noted that neither party submitted that the amendments to s 48A introduced by the Migration Legislation Amendment Act (No 1) 2014 was relevant to the task of construing that provision as in force prior to those amendments.

(g) The appropriate relief

143    The question of the validity of the first protection visa, within the meaning of s 46 of the Act, is an objective question, upon which the first respondent or an authorised Departmental officer is entitled to form a view, but if there is a controversy the issue is ultimately one for a court to resolve (see Kim at [27]). I did not understand the Minister to question this particular aspect of Kim, whether in his notice of contention or otherwise.

144    In the FCCA proceedings below, evidence was filed by the parties going to the issue of the first and second appellant’s knowledge concerning the first protection visa. Because the proceeding below proceeded by way of the separate question, the Court below did not make findings of fact in relation either to this subject matter or to the related issues of the mother’s parental authority and the children’s respective legal capacities at the relevant times. It is now necessary for it to do so, having regard to the reasons above and to whatever evidence is adduced by the parties. Accordingly, the appeal should be allowed and the matter remitted to the FCCA for reconsideration according to law.

145    Since preparing a draft of these reasons, I have had the advantage of reading Robertson and Wigney JJ’s draft reasons for judgment. I respectfully agree with their reasons.

Conclusion

146    For these reasons, I consider that the following orders should be made:

1.    To the extent that it is required, leave to appeal be granted in respect of the orders made on 11 December 2015 by the primary judge.

2.    The appeal be allowed.

3.    Orders 2, 3 and 4 of the orders made on 11 December 2015 by the primary judge be set aside.

4.    The matter be remitted to the Federal Circuit Court of Australia for reconsideration according to law.

5.    The first respondent pay the appellants’ costs of the appeal, as agreed or assessed.

Associate:

Dated:    7 June 2017

REASONS FOR JUDGMENT

MORTIMER J:

147    I have had the advantage of reading the draft reasons of Griffiths J, and the concurring reasons of Robertson and Wigney JJ. Their Honours’ reasons relieve me from setting out the factual and legislative background in this appeal, and the parties’ respective submissions.

148    Unlike their Honours, I do not consider s 48A(1) can be construed in a way which renders a protection visa application by persons in the first and second appellants’ position a valid visa application for the purposes of s 46 of the Migration Act 1958 (Cth). I do not consider the question of proof by admissible evidence as to their consent or legal capacity, or lack of consent or legal capacity to the lodging of a visa application on which they were included as family members to be determinative of whether they “made” an application for a protection visa. In my opinion the proper construction of s 48A(1) is that, subject to the Minister’s personal discretion in s 48B, it operates to prevent a further protection visa application by a person who had unsuccessfully applied for a protection visa as a member of a family unit, whether or not that person is a minor or a person without legal capacity by reason of a disability. Whether the preclusion in s 48A(1), read with s 46 would operate in circumstances of fraud will depend on the nature of the fraud and its consequences, but that is not a question which need be determined on this appeal.

149    The appeal should be dismissed.

My general approach

150    The parties were in agreement that the phrase “application for a protection visa” in s 48A(1) means a valid application for a protection visa. That is consistent with previous authority in this Court: see SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91; 168 FCR 487 at [3], [7] and [12]-[13] (Black CJ and Allsop J), although in SZGME the Minister had sought, unsuccessfully, to make a contrary argument. In contrast, Moore J in SZGME (see [148]ff) found that s 48A extended to both valid and invalid protection visa applications, and that the section precluded the making of a second or further valid or invalid protection visa application. I proceed on the basis agreed by the parties and favoured by the majority in SZGME: that is, that the phrase “application for a protection visa” in s 48A(1) refers to a valid application for a protection visa.

151    The resolution of the issue in this appeal is said to turn on the phrase “has made” in the chapeau to s 48A(1). The appellants’ submission is that the phrase “has made” should be confined so as to include only an earlier protection visa application made “knowingly” by a non-citizen. While the appellants’ concern in the appeal is with minors, it appears this argument would extend to adults with and without legal capacity. It would appear the appellants’ construction of “has made” requires that every non-citizen included in a protection visa application be found to have made the application being “aware of the application, including its contents” and being “sufficiently mature to comprehend the same” (see [30] of the appellants’ written submissions). The breadth of the construction for which the appellants contend is considerable. Drawing on the Full Court’s approach in Minister for Immigration and Border Protection v Kim [2014] FCAFC 47; 221 FCR 523, the appellants’ argument was based on common law considerations about guardianship and capacity.

152    I do not accept these considerations govern the proper construction of s 48A(1). In my opinion the features of the legislative scheme itself (which term I use to embrace the trinity of text, context and purpose) indicate that for the purposes of applications for, and grants or refusal of, visas, the scheme does not differentiate between adults and minors, and between those with legal capacity and those without it. Nor do I consider that the parties’ joint agreement that the first protection visa application was valid must be premised on issues concerning capacity, as Wigney J suggests. The first application was valid because it complied with the requirements of s 46(1), and in particular paras (a) and (b): namely that it was an application for a visa of a class specified in the application; and that it satisfied the criteria and requirements prescribed under s 46. None of those requirements depend on the legal capacity of the visa applicant, for reasons which I explain below. However those requirements do include criteria enabling a member of the “family unit” of a non-citizen who applies for a visa of a particular kind and class to be granted a visa of the same kind and same class as the primary applicant. In doing so, the Act and the Migration Regulations 1994 (Cth) evince a legislative intention that, in specified circumstances (and subject to executive alteration from time to time) families can be kept together and granted the same kind of migration status where one family member meets the principal criteria for a particular visa. Their migration status will generally stand or fall on the success of the application of the primary applicant, including and extending to some of the visa cancellation provisions. This is, in my opinion, an intended outcome of the scheme.

153    The concept of a “member of the family unit” appears in the Act in various places, but finds its greatest expression in the Regulations. That is because the concept is used principally as a visa criterion, and the predominant but not exclusive location of visa criteria in this legislative scheme is in the Regulations: intentionally so, in order that they may be susceptible to executive alteration as migration policy changes. To pay close attention to the Regulations concerning family unit visa applications is not to construe the Migration Act by reference to the Regulations, but rather to see the Act and the Regulations operating together as a legislative scheme: see generally Master Education Services Pty Limited v Ketchell [2008] HCA 38; 236 CLR 101 at [19], where the Court said:

In the absence of an express prohibition in the Act, any such prohibition against the making of an agreement, unless there has been compliance with an industry code, must be found by a process of implication, as Mason J observed in Yango Pastoral Company v First Chicago. The Court of Appeal relied upon the terms of cl 11(1) of the Code in concluding that entry into a contract was prohibited by the Act. It may be useful to read together regulations and the Act with which they were made, in order to identify the nature of a legislative scheme which they comprise [the Court cited here Mason J in Brayson Motors Pty Ltd (In liq) v Federal Commissioner of Taxation [1985] HCA 20; (1985) 156 CLR 651 at 652]. That is not a warrant for the use of the Code to construe, and expand, the terms of s 51AD, in particular by reference to the nature of the language of cl 11(1). Regulations are to be construed according to ordinary principles of construction. That requires that they be placed in their statutory context. In the case of regulations that includes the legislation under which they are enacted and with which they are required to be consistent.

(Footnotes omitted.)

154    An understanding of the place of visas, and visa applications, in the legislative scheme as a whole (including the Regulations) informs the construction of s 48A(1). The amendments that have been made to the Act, and in particular to s 48A, also bear legitimately on its construction, and are to be read together as a “combined statement of the will of the legislature”: Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24; 255 CLR 179 at [25] per Crennan, Bell, Gageler and Keane JJ, quoting Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; 184 CLR 453 at 463. It is also necessary to understand the particular kind of visa in issue (here, a protection visa, with its various criteria) in order to understand how the key provisions of the Act (not only s 48A) operate.

features of the legislative scheme

The place of visas and the role of s 48A in the legislative scheme

155    At the time of the appellants’ visa applications on 12 August 2014, the relevant version of the Migration Act included amendments up to Act No. 31 of 2014. The most recent changes to s 48A, after the Full Court decision in Kim, were not in effect. The following analysis is based on that version of the Act, although many of the provisions to which I refer have been fundamental features of the legislative scheme since the enactment of the Migration Reform Act 1992 (Cth).

156    A visa is the manifestation of executive permission to enter and remain in Australia: see s 29. As a matter of law under the scheme of the Migration Act, and notwithstanding the administrative forms and processes which may be employed, permission is given or withheld to every individual non-citizen. It is the granting of permission which is the executive act. In Minister for Immigration and Multicultural and Indigenous Affairs v Kim [2004] FCAFC 329; 141 FCR 315 at [36], Allsop J (as his Honour then was) said of a visa application:

An application is a request. Generally in a context such as the present, it is manifested in a document, but it is the request that is made to the Executive and which subsists as a request until dealt with.

157    The legislative scheme describes this executive act of permission as a “visa”, although it contemplates expressly that, independently of the executive act, evidence of the permission may be given in a prescribed form: see ss 70 and 71A.

158    In the current Regulations, no form of evidence appears to be prescribed. That may have something to do with the changes in the electronic storage of information, or there may be other explanations. However as at 12 August 2014, reg 2.17(1) provided the form of evidence, for the purposes of s 70(1) of the Act, to be a “label affixed to the non‑citizen’s valid passport by an officer”. Unless the Minister had given a written statement to the non-citizen which included the visa conditions, reg 2.17(2) required that such label must have included a statement of the period for which the visa was in effect, the visa class and subclass, and, if the visa allowed the holder to travel to and enter Australia, a statement of that fact. These provisions confirm the individual character of each permission.

159    The scheme also contemplates there will be a written record of the grant of a visa. The way in which a decision to grant or refuse a visa is made is governed by s 67 of the Act. Like other provisions on this subject, the language used is in the singular, reflecting the structure of the scheme that executive permission is either granted or refused to each individual non-citizen.

160    The Act’s structure was and is that this permission can be of a temporary or permanent kind (see s 30) and is to be given by reference to “classes” of visas: see s 31. Some classes are prescribed by the Act (see ss 32 to 38B), including the class known as protection visas (s 36).

161    The scheme contemplates criteria for the grant of each class of visa. The formation of a state of satisfaction concerning the criteria is the fundamental component of the duty imposed by s 65 of the Act on the Minister, his delegates and those performing merits review functions.

162    Some of the statutory classes of visa have criteria which are set out in the Act. In August 2014 s 36, dealing with protection visas, was an example. Generally, specification of statutory visa criteria does not preclude the prescription of additional visa criteria through the Regulations: see s 31(3). The Regulations may prescribe other classes of visa (s 31(1)) and all of the criteria for those classes (s 31(3)).

163    The changes in the criteria in s 36 of the Act for the grant of a protection visa are of some significance for the present appeal in considering the applicability of some earlier authorities of this Court.

164    After Dranichnikov v Minister for Immigration and Multicultural Affairs [2001] FCA 769; 109 FCR 397, and for the purpose of avoiding the reasoning set out by the Full Court in that case (and approved by a majority in Soondur v Minister for Immigration and Multicultural Affairs [2002] FCAFC 324; 122 FCR 578, which I discuss below at [241]-[258]), s 36 of the Migration Act was amended. An express criterion for the grant of a protection visa was added: namely, that a person was a member of the family unit of a person who claimed she or he was owed protection obligations by Australia. After Dranichnikov and the passage of the Migration Legislation Amendment Act (No. 6) 2001 (Cth), s 36(2) read:

(2)    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.

165    Section 36(2) remained relevantly in that form in relation to the application by the first appellant, her mother and brother in November 2011, although the words “spouse or a dependant” were removed, and were replaced with “member of the same family unit”. Thus, in the November 2011 application, the first appellant and her brother sought to meet the criterion in s 36(2)(b) and not the criterion in s 36(2)(a). The mother sought to meet the criterion in s 36(2)(a) and indeed needed to meet that criterion for the first appellant and her brother to meet the criterion in s 36(2)(b). In order to be granted a protection visa, the first appellant was nevertheless required to meet specified criteria, otherwise a delegate would be duty bound by s 65 to refuse her a visa. One rationale behind the ability to grant protection visas to members of the family unit of a person found to be owed protection obligations under the Refugees Convention (Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees, done at New York on 31 January 1967) is that given by Carr J in Soondur, to which I refer at [251] below, and with which I respectfully agree. See also Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; 211 CLR 441 at [19]-[25]; [30]. The important point for present purposes is that the legislative scheme as set out in s 36(2). required the first appellant and her brother to meet specified criteria for the grant of a protection visa.

166    Section 45 requires a non-citizen who wants a visa to “apply” for a visa. It is a cornerstone of the structure of the Act and has not been amended since 2000. Although s 45 uses “apply” as a verb, in my opinion where the statute goes on to speak of an “application”, it refers to what has occurred under s 45. The verb “apply” and the noun “application” have the same meaning and consequences, although in some contexts in the Act, the noun “application” is also used in a narrower sense to mean “application form”.

167    In Minister for Immigration & Multicultural Affairs v Li [2000] FCA 1456; 103 FCR 486 at [76] the Full Court said:

...the legislation uses the term ‘application’ in two senses. Sometimes, as in s 54, the word refers to the application form itself. On other occasions, as in ss 45 and 46, it refers to the process of applying for a visa which includes, but is not limited to, the completion of a prescribed application form.

(Emphasis added.)

168    This statement was cited with approval by Moore J in Minister for Immigration and Citizenship v Mon Tat Chan [2008] FCAFC 155; 172 FCR 193 at [8].

169    Relevantly, for the purposes of s 48A, the term “application” refers to the process of having applied, consistently with s 45, for a protection visa. For reasons I develop below, in my opinion the phrase “made an application” does not mean “completed an application form” or “gave informed consent to the completion of an application form on her or his behalf”, or any like meaning. Rather, the term refers to applying for a visa as s 45 requires. That is something each non-citizen must do in order to be able to receive a grant of a visa under s 65, and thus receive the individual executive permission for which s 29 provides.

170    Section 46 is the provision which, depending on the construction of s 48A, will render the appellants’ 2014 applications valid or invalid. In particular, s 46 requires that to be valid, a visa application must be for a particular class, and the application must satisfy the criteria and requirements prescribed in the Regulations. Section 46(1)(d), as in force at 12 August 2014, also provided that an application for a visa would be valid if, and only if, it was not “prevented” by the other provisions there referred to. I deal with some of those other provisions below, because in my opinion they are consistent with the construction of s 48A which I consider to be correct. For present purposes, I note again the use of the singular throughout s 46 when referring to an “applicant”, implying that its terms operate on an individual basis in relation to each non-citizen who applies for a visa as s 45 requires. See, for example, s 46(2AA) as in force at 12 August 2014, regarding the provision of personal identifiers such as fingerprints or an iris scan by an applicant for a protection visa. There was nothing in the text, context or purpose of s 46 to suggest that such identifiers could only be required of adults, or persons who had legal capacity, and indeed such a construction would tend to frustrate the purpose of such provisions, which was to enable confirmation of the identity of visa applicants, a matter which was, and remains, central to the scheme.

171    Section 47 must also be considered. The Minister, or her or his delegate, has two co-extensive duties under s 47 – to consider a valid visa application (sub-s (1)), and not to consider an application that is not a valid application (sub-s (3)). Validity is, as I have noted, determined by compliance with the statutory prescriptions for validity. A binary division is erected between validity and non-validity, so as to enable one of the two duties to be performed. I doubt that, aside from fraud, common law principles (including those concerning minors and capacity) are intended to operate in this legislative scheme to render a visa application valid or invalid outside the terms of s 46 and the statutory prescriptions to which it refers, but as I note at [216]-[217] below, that is not a matter I need to determine in this appeal.

172    Outside the express terms of the Act, visa classes are prescribed in Sch 1 of the Regulations. The class called Protection Visa (Class XA) is contained in cl 1401.

173    Criteria for each visa class are prescribed in Sch 2. For some classes, all the criteria are contained in the Regulations: as I have noted, for other classes, at least some criteria are set by the Act itself. The criteria for protection visas (in addition to those set out in s 36) are contained in subclass 866.

174    Consistently with s 36(2)(b) of the Act in its form since 2009, both cl 1401 and cl 866 refer to applications by members of a family unit of another non-citizen, who claim to be owed protection obligations by Australia. The effect is that if individuals are members of the family unit of the “primary” applicant who claims protection, they can be included in the same protection visa application, in the sense of the same application form. So much is apparent from the structure of the approved forms, described by Griffiths J in his Honour’s reasons at [37]-[53].

175    The “time of application” and “time of decision” criteria in subclass 866 make it a criterion of application and of grant that a person (other than the primary applicant) is a “member of the family unit” of the person who claims to satisfy the s 36(2)(a) or (aa) criteria for protection. Only the primary applicant need satisfy some criteria – for example, the public interest criteria regarding security assessments: see cl 866.225 in Sch 2. However, as I note below, there are other criteria which must be met by members of the family unit as well.

176    The phrase “member of the family unit” is a defined term in s 5 of the Act, but the definition is by reference to the Regulations. As of 12 August 2014, reg 1.12 of the Regulations set out the definition. Regulation 2.07 concerned approved application forms for visas, and is the legislative source of the forms used by the first appellant and her family, and described by Griffiths J.

177    Regulation 2.08A dealt with the addition of certain applicants for permanent visa applications. The regulation provided for the addition of a spouse or de facto partner or a dependent child. Regulation 2.08A(1)(e) and (f) provided that where this addition occured:

(e)     the additional applicant is taken to have applied for a visa of the same class; and

(f)     the application of the additional applicant:

(i)    is taken to have been made on [one of two dates]; and

…

(iii)    is taken to have been made at the same place, and on the same form as, the application of the original applicant.

(Emphasis added.)

178    These provisions are consistent with the construction of s 48A(1) I prefer. They treat a dependent spouse (an adult) and a dependent child in the same way. Their purpose is to ensure compliance with s 45 and to place the dependent spouse or child, by a deeming provision, in the position of having applied for a visa in the same way and at the same time as the primary applicant, thus ensuring the family’s migration status is treated consistently.

179    The need to apply for a visa in s 45 is given effect in a way which does not give any special meaning to the word “made”, but rather treats it as consonant with “applied”.

180    Regulation 2.08B, dealing with the addition of dependent children to temporary visa applications, was to the same effect, and used “made” in the same way. Regulation 2.08E was to similar effect in relation to spouses.

181    Regulation 2.09 should be noted. It authorised oral applications for a visa. In the absence of any textual or contextual suggestions to the contrary, this includes oral applications by members of a family unit. In some circumstances therefore, the legislative scheme permits oral applications to satisfy s 45. Where that is permitted, there is no reason not to characterise an oral application as also “made” by a child who is a member of a family unit.

182    Regulation 2.10 dealt with the location where a visa application must be made, for the purposes of s 46 of the Act. It is clear from the context of the provision that “made” simply meant filed or lodged. It carried no specific meaning requiring informed consent, knowledge or legal capacity of all visa applicants.

183    Clause 1401 of Sch 1 sets out the class of visas known as Protection Visas (Class XA). It provides:

1401. Protection (Class XA)

(1)    Form: 866.

(2)    Visa application charge:

(a)    first instalment (payable at the time the application is made):

(i)    for an applicant who is in immigration detention and has not been immigration cleared:

(ii)    for any other applicant:

Note:    Regulation 2.12C explains the components of the first instalment of visa application charge and specifies the amounts of subsequent temporary application charge and non-Internet application charge. Not all of the components may apply to a particular application.

    Additional applicant charge is paid by an applicant who claims to be a member of the family unit of another applicant and seeks to combine the application with that applicant’s application.

(b)    the second instalment (payable before grant of visa) is nil.

(3)    Other:

(a)    Application must be made in Australia.

(b)    Applicant must be in Australia.

(c)    Application by a person claiming to be a member of the family unit of a person who is an applicant for a Protection (Class XA) visa may be made at the same time and place as, and combined with, the application by that person.

(4)    Subclasses:

866 (Protection)

184    This regulation also describes an application as being “made” (cl 1401 (3)(a) and (c)), and uses this word when describing an application by a person claiming to be a member of the family unit of the primary applicant. It uses the word to mean “filed” or “lodged”. The language of sub-para (c) makes it clear that notwithstanding the ability to “combine” an application, the legislative scheme operates on the basis each non-citizen applies, in her or his own right, for a protection visa. Again, in my opinion “made” as used here is intended to be consonant with “applied” in s 45 and to describe the process by which a non-citizen applied for a visa.

185    Turning to the criteria prescribed for a Protection Visa (Class XA), by cl 866.112, there are some further refinements to the concept of member of the family unit.

186    Clause 866.211 prescribes four alternative criteria, one of which must be satisfied at the time of application. It provides:

(1)    One of subclauses (2) to (5) is satisfied.

(2)    The applicant:

(a)    claims to be a person to whom Australia has protection obligations under the Refugees Convention; and

(b)    makes specific claims under the Refugees Convention.

(3)    The applicant claims to be a member of the same family unit as a person who is:

(a)    mentioned in subclause (2); and

(b)    an applicant for a Protection (Class XA) visa.

(4)    The applicant claims to be a person to whom Australia has protection obligations because the applicant claims that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.

(5)    The applicant claims to be a member of the same family unit as a person who is:

(a)    mentioned in subclause (4); and

(b)    an applicant for a Protection (Class XA) visa.

187    To some extent, this duplicates the criteria in s 36(2)(a) and (b) of the Act. The important point for present purposes is that the criteria are alternative and an individual can satisfy the criteria by establishing membership of a family unit, without ever needing to meet the substantive protection obligation criteria herself or himself.

188    Clause 866.221 is to the same effect for the “time of decision” criteria.

189    To illustrate what I consider to be an underlying assumption in the legislative scheme that each individual is treated as applying for a visa, and as “making” an application, reference can be made to the criteria in cl 866.224 (a) and (b), which provide:

The applicant:

(a)    has undergone a chest x-ray examination conducted by a medical practitioner who is qualified as a radiologist in Australia; or

(b)    is under 11 years of age and is not a person in respect of whom a relevant medical practitioner has requested such an examination…

190    This criterion applies to a “primary” applicant who makes claims to protection, and to members of the family unit of the primary applicant. The terms of this criterion demonstrate that a child under 11 years is treated as an applicant, as is a child over 11 years, as is an adult. The scheme may differentiate by reference to age in terms of what criteria must be satisfied, but it treats each non-citizen as an individual applicant and as needing to meet the applicable prescribed criteria.

191    Clause 866.225 is a further example of where the criteria differ as between a non-citizen under 18 and a non-citizen over 18. The criteria are different, but each prescribed set must be met: the fact that a non-citizen under 18 has her or his application combined on the same application form as an adult relative does not relieve the minor, including a small child, from needing to satisfy the requirements that her or his application must satisfy in order for s 65 to operate in her or his favour.

192    A final example is cl 866.230, which provides:

(1)    If the applicant is a child mentioned in paragraph 2.08(1)(b), subclause (2) or (3) is satisfied.

(2)    Both of the following apply:

(a)    the applicant is a member of the same family unit as an applicant mentioned in subclause 866.221(2);

(b)    the applicant mentioned in subclause 866.221(2) has been granted a Subclass 866 (Protection) visa.

(3)    Both of the following apply:

(a)    the applicant is a member of the same family unit as an applicant mentioned in subclause 866.221(4);

(b)    the applicant mentioned in subclause 866.221(4) has been granted a Subclass 866 (Protection) visa.

193    Regulation 2.08 deals with children born after visa application. Thus, the subject matter of cl 866.230 is a newborn child. The legislative scheme, expressly by cl 866.230, treats that newborn child as an applicant.

194    The situation in both November 2011 and August 2014 remained the same as that described by Black CJ and Allsop J in SZGME at [89]-[90]:

Thus, there were two ways to obtain a protection visa: (a) to have claims under Art 1A(2) of the Refugees Convention (see the criterion referred to in s 36(2) of the Migration Act as it stood in 1996); and (b) to be a member of the family unit of someone who was granted a protection visa on the basis of his or her own claims.

The separate basis for a protection visa in s 36(2) led a Full Court in Dranichnikov v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 397 to conclude that the phrase ‘application for a protection visa’ in s 48A only encompassed the protection visa provided for by s 36(2) – that is, where the claims were made by the applicant. Section 48A was later amended to include in the phrase ‘application for a protection visa’ in that section the application by a family member: s 48A(2)(ab). In any event, it is clear from s 31(3) and the Regulations that persons in the position of SZGME were, when basing their application on family membership, applying for a protection visa. Nor was there any reason why an applicant could not apply for a protection visa under both bases.

(Emphasis added.)

195    The point made in the last sentence is, with respect, not unimportant. The criteria in s 36(2) (a) and (b) were independent of each other. An individual could apply on the basis of seeking to satisfy either, but also both: that is, having her or his own claims for protection, and being a member of the family unit of a person making claims for protection. The individual’s application would then need to be assessed, independently, against both sets of criteria. The scheme does not preclude this occurring within the same application form or process.

196    In my opinion when construing s 48A(1) and the words “a non-citizen who…has made”, one must construe those words in the context of how the Migration Act requires and contemplates a visa application will be made. In this legislative scheme, the Regulations are an integral part: in relation to the grant or refusal of visas, the Act does not and cannot operate without the Regulations. And for circumstances where one family member makes protection claims, and other family members make no individual protection claims but secure an entitlement to a visa because they are members of the same family unit, then the appropriate way to read s 48A(1) is to see those members of the family unit as having “made” an application for a visa. That is what s 45 requires. Subject to extraordinary provisions such as s 195A, if a person (including a family member of an applicant who makes claims for protection) has not applied for a visa, she or he cannot be granted a visa. I do not consider the use of the word “made” in the phrase “made an application” in s 48A(1) somehow narrows the categories of non-citizens to whom s 45 applies.

197    A number of other provisions in the Act confirm my view that where s 48A(1) uses the phrase “made an application”, that phrase should be understood to refer to an individual applying for a visa as s 45 contemplates, whether as a member of a family unit or otherwise, and irrespective of whether the non-citizen is a minor, or a person without legal capacity.

198    Section 46(4) provides:

(4) Without limiting subsection (3), the regulations may also prescribe:

(a)    the circumstances that must exist for an application for a visa of a specified class to be a valid application; and

(b)    how an application for a visa of a specified class must be made; and

(c)    where an application for a visa of a specified class must be made; and

(d)    where an applicant must be when an application for a visa of a specified class is made.

199    It is clear that s 46(4)(b)-(d), when those provisions use the phrases “must be made” and “is made” are describing the process which s 45 requires. Paragraph (d) in particular is intended to operate in relation to each individual who applies for a visa, whether in her or his own right, or as a member of a family unit. The regulations made pursuant to this power, which I have set out at [177]-[182] above, are consistent with this meaning.

200    Section 50 should be mentioned. That is a provision designed to achieve some level of administrative efficiency and consistency in the consideration of claims to protection where a person has previously applied for a protection visa. Its purpose is to relieve the delegate from going back over information already the subject of a decision, and to allow the terms of any previous decisions about such information to be adopted by the current decision-maker. Section 50 does not mandate such an approach: rather, it is permissive. It encourages a decision-maker to look at the previous decision, evaluate it and decide whether to take the same approach to the information provided on the first occasion. It is not difficult to see how some consistency of decision-making is promoted by a provision such as s 50. On the majority’s approach, s 50 would have no operation in relation to the first and second appellants if they were to apply again for a visa. On the majority’s construction, s 50 (like s 48A) has no operation in relation to individuals who were included on a family unit application unless they gave informed consent. Although there is nothing in the Act to prevent a person included as a member of a family unit making individual claims for protection as part of that application (or, if a child, having claims made on her or his behalf), the purpose of s 50 would, in my respectful opinion, be frustrated on the appellants’ construction.

201    It is unclear whether the appellants’ construction has an effect on, for example, the procedural fairness provisions as they existed in August 2014 in Subdivision AB of Division 3 of Part 2 of the Act. Sections 56 and 57 then provided:

56 Further information may be sought

(1)    In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa.

(2)    Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way.

57 Certain information must be given to applicant

(1)    In this section, relevant information means information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for refusing to grant a visa; and

(b)    is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and

(c)    was not given by the applicant for the purpose of the application.

(2)    Subject to subsection (3), the Minister must:

(a)    give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and

(c)    invite the applicant to comment on it.

(3)    This section does not apply in relation to an application for a visa unless:

(a)    the visa can be granted when the applicant is in the migration zone; and

(b)    this Act provides, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.

202    Plainly, these provisions will usually operate in relation to the “primary applicant” in a family unit. However it is not difficult to conceive of circumstances where these provisions might operate in relation to a member of a family unit. The obvious example is where there may be doubt whether the person is a member of the same family unit, as claimed. Such a person must be comprehended by the term “applicant” in those provisions and if that is so, there is no meaningful distinction between being an “applicant” and having a person who has “made an application”.

203    Section 78, as it stood on 12 August 2014, concerned children born in Australia as non-citizens while one parent (at least) held a visa. It deems such a child to have been granted a visa. It does not suggest such a child does not need a visa which is specific to her or him.

204    Section 83 deals with a variation of the “family unit” model of visa grants. It concerns individuals (spouses and children) who are included in the passport of another person (that is, the other spouse or the parent). Taking s 83(2) as the example, it provides:

(2)    Where:

(a)    the name of a child is included in the passport or other document of identity of a parent of the child; and

(b)    the child accompanies that parent to Australia (whether before or after the commencement of this section);

the child shall be taken to be included in any visa granted to the parent evidence of which is endorsed on the passport or other document of identity if, and only if, the child’s name is included in the endorsement.

Note:    Subsection 5(1) defines child and parent. For the purposes of this section, those definitions apply only in relation to visas granted on or after 1 July 2009: see the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008.

205    This provision only applies, on its face, to visas granted offshore. A child travelling on a parent’s passport is deemed to have been granted a visa because, consistently with the scheme, a visa is an individual executive permission.

206    Section 87, as it stood on 12 August 2014, provided:

87 Limit does not prevent visas for certain persons

(1)    Section 86 does not prevent the grant of a visa to a person who applied for it on the ground that he or she is the spouse, de facto partner or dependent child of:

(a)    an Australian citizen; or

(b)    the holder of a permanent visa that is in effect; or

(c)    a person who is usually resident in Australia and whose continued presence in Australia is not subject to a limitation as to time imposed by law.

(2)     For the purposes of this section, a child of a person is a dependent child if the child:

(a)    does not have a spouse or de facto partner; and

(b)    either:

(i)    is under 18; or

(ii)    is 18, 19 or 20 and is dependent on the person for:

(A)    financial and psychological support; or

(B)    physical support.

207    The assumption inherent in the text of this provision is that a dependent child (which would include an infant) is treated by the legislative scheme as “applying for” a visa.

208    Sections 91E and 91F deal with circumstances where, broadly, an individual non-citizen has the requisite kind of access to a “safe third country” and therefore may not be owed protection obligations by Australia. Section 91E is one of the provisions engaged by s 46(1)(d), and accordingly individual non-citizens covered by it will not make a valid visa application.

209    Section 91E provides:

91E Non-citizen to which this Subdivision applies unable to make valid applications for certain visas

Despite any other provision of this Act, if this Subdivision applies to a non-citizen at a particular time and, at that time, the non-citizen applies, or purports to apply, for a protection visa then, subject to section 91F:

(a)    if the non-citizen has not been immigration cleared at that time – neither that application nor any other application made by the non-citizen for a visa is a valid application; or

(b)    if the non-citizen has been immigration cleared at that time – neither that application nor any other application made by the non-citizen for a protection visa is a valid application.

210    Section 91F (like s 48B) then authorises the Minister to exercise a discretion to permit a person to apply for a protection visa, notwithstanding the operation of the subdivision.

211    The textual point is that where s 91E speaks of a non-citizen applying or purporting to apply for a protection visa, this can only be read as a reference to s 45. It can only be read as operating on each individual non-citizen who may have the requisite access to a safe third country, whether adult or minor, whether with or without legal capacity, whether primary applicant or spouse. Members of a family unit are not exempted from the preclusion contained in s 91E.

212    Similar observations can be made about s 91K, to which s 46 also applies, by reason of s 46(1)(d).

213    The Minister refers in his submissions to s 98 which provides:

A non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

214    As the Minister submits, s 98 is a further example of the absence from the scheme of requirements such as knowledge or consent. The scheme intends that each individual non-citizen be treated as an applicant for a visa, where applicable, without distinctions based on legal capacity or even (as s 98 illustrates) personal conduct.

215    The operation of s 98 does not extend to a visa applicant who had relied on a migration agent to complete a visa application form on her or his behalf where the migration agent perpetrates a fraud on the visa applicant: see Gill v Minister for Immigration and Border Protection [2016] FCAFC 142 at [50]. However s 98 does operate to fix a non-citizen with the consequences of a migration agent filling out a form with incorrect or incomplete information that may result in visa cancellation, or conversely, consideration and refusal of a visa application a non-citizen did not, in fact, authorise: see SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393 at [16], (Bennett J), referring to the Full Court decision in NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199.

216    To a large extent, a provision such as s 98 confirms the Act does not intend to incorporate common law principles of agency or parental authority in any comprehensive way. However, previous authorities have recognised the complexities of these matters: see the Full Court’s decision in Al Raied v Minister for Immigration and Multicultural Affairs [2001] FCA 313 at [36]-[43].

217    The complexities need not be addressed in the appeal because, at the level of how the legislative scheme deals with who is an applicant for a visa (and who must be), I agree with the Minister’s submissions that the Act’s intention is clear.

218    Section 140 applies to holders of protection visas. By s 140(1), the consequence of cancellation of the visa of a primary applicant is, in certain circumstances, visited upon a person who holds a visa by reason of being a member of the family unit of the primary applicant. Similarly s 140(3) extends cancellation consequences to some children whose parent’s visa is cancelled. These provisions reflect the connection the scheme makes between a primary applicant and members of the family unit, and between parent and child. While children secure individual visas, those visas are vulnerable to negative consequences under the Act which affect the primary applicant’s or parent’s visa.

219    So, in my opinion, it is with s 48A(1). The features of the legislative scheme to which I have referred reveal the following:

    The legislative intention is that each individual non-citizen must apply for a visa.

    The scheme does not differentiate in this requirement between adults and minors, nor between those with and without legal capacity, although it may impose different visa criteria which are, at least, age dependent.

    The Act and the Regulations, which are intended to operate together to create a scheme for the grant, refusal and cancellation of visas, facilitate the consideration of visa applications by, and the grant of visas to, members of the family unit of an individual non-citizen identified by the scheme as the primary applicant. While this has some beneficial consequences, in the sense that the existence of family unit criteria enable the grant of visas to non-citizens who may not otherwise qualify for those visas, the scheme also ties the fate of the migration status of members of the family unit to the migration status of the primary applicant, including on some occasions in relation to cancellation of visas.

    When the scheme describes a non-citizen as “making” an application, or an application as “made”, it uses this language as a way of describing the process required of each non-citizen by s 45.

220    These features mean that, in my opinion, the correct construction of s 48A(1), including the phrase “made an application”, is that it is intended to include each non-citizen who has applied for a protection visa, whether alone, or as a member of a family unit.

Matters that are not relevant

221    In part because of the view I have taken about s 48A(1), and the operation of s 45, read with the terms of s 36(2), I do not consider the facts in this appeal concerning which parts of the documents comprising the first protection visa applications form were filled out by whom is of material significance. As I have noted, whether in 2011 the first appellant (or her brother) sought to satisfy the criteria in s 36(2)(a) or those in s 36(2)(b), she was on any view applying for the grant of a protection visa, and in that sense “made” an application. Otherwise, if a contrary fact situation had played out and the delegate had formed a positive state of satisfaction under s 65 in 2011, I do not see how the first appellant (or her brother) could have been granted a visa.

222    The subsequent amendments to s 48A, by the Migration Legislation Amendment Act (No.1) 2014 (Cth), commencing in September 2014 and discussed by Griffiths J at [118]-[121] were, as his Honour has set out, intended to overcome this Court’s decision in Kim, and were consciously extended to cover s 48A as well as s 48. Neither party on this appeal sought to rely on the propositions emerging from Grain Elevators Board (Vic) v Dunmunkle Corp [1946] HCA 13; 73 CLR 70 concerning the use, for the purposes of construction, of a later amendment to a statutory provision. Without giving any detailed consideration to the various authorities that have applied, limited, distinguished or qualified Dunmunkle, it is apposite to note the need for caution in adopting the approach in Dunmunkle, as expressed by a Full Court of this Court in Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348 at 382:

There is a line of authority that an amendment may be taken into account in determining the scope of the prior legislation, at least to avoid a result which would render the amendment unnecessary, or futile or deficient … But in doing so, caution should be exercised … It is, after all, a curious way of revealing parliamentary intention at the time of passing the earlier provision. As was observed by Viscount Haldane LC in Re Samuel [1913] AC 514 at 526:

‘It is not a conclusive argument as to the construction of an earlier Act to say that unless it be construed in a particular way a later enactment would be surplusage. The later Act may have been designed, ex abundante cautela, to remove possible doubts.’

223    I note the Explanatory Memorandum, extracted at [121] of Griffiths J’s reasons, describes the effect of the amendments as putting “beyond doubt” that it does not matter if the protection visa application is being made by the person “in their own right or by another person on their behalf”. On my preferred construction, the amendments do no more than put the matter “beyond doubt”, because s 48A(1) already prevented such a second protection visa application.

224    Relying on Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; 218 CLR 273 at [11], the appellants submitted a “harsh result” may lead a court to prefer a construction avoiding a “harsh result”, on the basis the Parliament should not be assumed to intend such an outcome. However, the Minister rightly submitted Network Ten is about inconvenience and improbability, not harshness per se. The Minister is also correct to refer to Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; 239 CLR 27 and Certain Lloyd’s Underwriters v Cross [2012] HCA 56; 248 CLR 378 where the High Court disavows the relevance and utility of any broad policy starting points informing the process of statutory construction, instead emphasising that the interpretation must arise from the text. There are many aspects of the legislative scheme of the Migration Act which might colloquially be described as “harsh” by some readers. The legislative intention of s 48A is clear, and describing the effect of it on the appellants as “harsh” does not contribute to resolving the construction issue.

Some consequences of the appellants’ argument

225    At [50], Griffiths J refers to the fact of the mother signing for her son, the second appellant, again, in the 2014 protection visa application. Indeed, the mother signed for the second appellant with the handwritten “in loco parentis” on the second protection visa application. On the majority reasoning, this would seem to suggest the second appellant could apply for a third time, having been refused a visa twice, and lodge another application without being caught by s 48A(1), if he could establish lack of “knowledge”, or perhaps capacity, about the second protection visa application.

226    The facts of this appeal illustrate some of the difficulties with a different construction of s 48A(1). In the first protection visa application, the mother was the primary applicant and made claims for protection. The children were identified as members of her family unit and made no claims. In the second protection visa application, the daughter was the primary applicant making her own claims for protection, with the mother and son listed as members of her family unit (although the son also made claims for protection which mirrored the first appellant’s claims) – see Griffiths J’s reasons at [47] and [52]. In that sense, the mother has “made” two visa applications (there being no issue of capacity with the mother) but the outcome of the appellants’ proposed construction allows for this. A similar point is made by the Minister in his written submissions on the appeal at [16], in relation to the absence of knowledge of the first appellant’s brother of both the first and second visa applications being made on his behalf.

227    I also consider the appellants’ approach imposes fact finding tasks on delegates, and then on the Administrative Appeals Tribunal on review, which are not consistent with the operation of the Migration Act. In order to determine if a second protection visa application is valid, and in order to decide how to perform the alternate duties imposed by s 47, the Minister or her or his delegate must engage in a fact finding exercise of uncertain ambit and nature about the factual circumstances of the first protection visa application (which may be several years ago, or more). How are the inquiries to be made of the putative applicant to determine capacity, acquiescence or knowledge on the previous protection visa application? What duties of procedural fairness attach, if any? Is an interview required? In the case of minors, should the parent or parents who completed the first application be heard? Might there be a conflict of interest between the (former) primary applicant and the members of the family unit seeking to apply a second time? How are these propositions about capacity and understanding and intention to be applied to unaccompanied minors? All these matters are extraneous to the careful, prescriptive scheme created by the Act.

228    There is a further difficulty with adopting, as the appellants do in effect, the approach of Gray J in Soondur. His Honour’s statement (at [38]) that “before it can be determined that a person ‘made’ a previous application, there must be a factual enquiry as to the age of that person and as to his or her capacity to understand the nature of such an application” is not, with respect, compatible with the terms of s 45 and the clear requirement that a person who wishes to have a visa must apply for one. While it may be the case that a parent or guardian in practical terms fills out, signs and lodges an application form which includes a child or an adult without legal capacity as members of a family unit, and is recognised at common law as able to do so, for the purposes of the Act if a child must have capacity and consciously “make” an application for a visa, it is difficult to see how a visa can be granted to a child without capacity and who has not made a conscious decision to apply. They are two sides of the same coin.

Fraud

229    At [79] of his Honour’s reasons, Griffiths J refers to my statement in Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127 at [105] and notes, correctly, that the statement I made, if read literally, does not make allowance for exceptions such as fraud, referring to SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189.

230    Fraud was not in issue in SZVCH, but I can readily acknowledge that my statement may have been insufficiently qualified by reference to fraud.

231    As the Court noted in SZFDE at [47] in a public law context, the ultimate issue will be whether any alleged fraud has had an effect on the exercise of statutory power, or the performance of a statutory function, which is under consideration. As the Court in SZFDE also noted at [22], in the field of public law, the likely only useful remedy available to a victim of fraud will be to have the decision or exercise of power said to be affected, or tainted, by the fraud, set aside, or rendered legally ineffective.

232    Accordingly, if by reason of circumstances such as those in SZFDE (fraudulent acts by a migration agent) or fraud by a family member, the protection visa decision-making processes under the Act were “stultified” (see SZFDE at [51]), then any decision made on the protection visa application may be liable to be set aside. This may, I accept, also lead to argument whether declaratory relief should be granted to the effect that no valid protection visa application was made. Whether such relief is appropriate or available would be a question to be determined in each case.

233    Without exploring all possible permutations of factual situations that may arise, it can be accepted that an individual applicant may be affected by fraud in a way which disadvantages the individual in the pursuit and consideration of a protection visa application. That a second protection visa application would be the appropriate outcome or solution, so as to engage ss 46(1)(d) and 48A is, in my respectful opinion, not immediately apparent. It seems more likely that the first protection visa application, said to be affected by fraud, would have no effect and s 48A(1) would never be engaged. That is especially so if, as the parties accepted, s 48A(1) is construed as dealing only with valid protection visa applications.

234    It is not necessary to reach any concluded views on these matters in this appeal.

Conclusions of features of the legislative scheme

235    Where family members are included with a primary applicant, the legislative intention is that there are multiple “applications” for a visa. That is because, as s 45 states, each non-citizen who wants a visa must apply for one. Exceptions to this are expressly stated, such as babies born after a visa application is made (reg 2.08) or a visa granted (s 78), and children or spouses travelling on another person’s passport with an offshore visa (s 83). For administrative convenience and because of existing policies around the grant of visas to families of those eligible for protection, one application form may be used. But that does not mean there is one “application”, any more than there is only one visa granted. Nor does it mean only the primary applicant “makes” an application. It must be recalled that the “primary applicant” in the sense of the non-citizen who claims to be entitled to protection may be a child who, at common law, lacks legal capacity: see, e.g. Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; 201 CLR 293. That is why there is no need for any deeming provision, to the effect that “a visa application lawfully made by a parent on behalf of the child” is deemed “to be an application made by the child” (cf the reasons of Robertson J in this appeal at [12]). The legislative scheme as I have described it ensures there is a visa application made by a child: otherwise, the child could not be granted a visa (outside circumstances such as ss 83, 195A or reg 2.08). At base, the structure of the Act is disarmingly simple. The Act does not, for the purposes of the distinction between lawful and unlawful non-citizens, and for the directly related concepts of a visa application and its determination under s 65, distinguish between adults and minors. The Act treats them in the same way. A four year old child requires a visa as much as a 40 year old mother, as much as a 70 year old grandfather.

236    All this is consistent with a scheme manifesting an intention prescriptively to control not only who can make a visa application, but in what circumstances. As I noted in SZVCH, the aspects of the legislative scheme of which s 48A forms part do reflect a legislative policy that an individual should be permitted to apply only once for a protection visa. Thereafter, the legislative policy is that the Minister, and only the Minister, can determine whether an individual should have a further opportunity to apply for a protection visa. Unlike Robertson J, I do not consider such a statement begs the question. Rather such a statement reflects the terms of the Migration Act. That is not to say the adjective “strict” should or should not be applied to the term “legislative policy”: such a descriptor is likely to put a gloss on the statute.

237    It would seem that the appellants’ construction argument accepts that, on the first application, the daughter and son could have been granted visas. That can only be because each applied for a visa as s 45 contemplates. To read this as somehow different to what is meant in s 48A by “made an application” is to introduce a dichotomy the language and context do not support.

Consideration of EARLIER Authorities

The Full Court decision in Kim

238    As Griffiths J has described in detail in his Honour’s reasons, Kim concerned a person who had been identified as a member of the family unit of her father (she was 14 years old at the time), when her father filed an application for a family visa. She then subsequently applied, by herself, for a student visa. Her student visa application was found by a delegate to be invalid because of the terms of s 48, which are set out in Griffiths J’s reasons at [124].

239    I prefer to leave consideration of whether Kim is plainly wrong until it is necessary to decide the question. Although my reasoning on s 48A(1) might be seen to tend against the Court’s conclusion in Kim in relation to s 48, there is no occasion on this appeal to examine whether the same reasoning necessarily applies to s 48. This appeal concerns s 48A(1) only.

Other authorities

240    Aside from Kim, there are two other Full Court decisions which must be considered, in light of the construction of s 48A which I have adopted. They are SZGME and Soondur.

Soondur

241    Soondur was decided shortly after Dranichnikov. I noted above at [164] that the Parliament amended s 36(2) after Dranichnikov. Parliament also amended s 48A, by introducing sub-ss (1B), (2)(aa) and (2)(ab), which provided:

(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.

(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

…

242    Soondur concerned two applications for a protection visa by the appellant mother: one in 1992 and one in 2000. Her daughters were also listed as visa applicants on both sets of protection visa application forms. In 1992, the two daughters were aged six and five months respectively. In both the 1992 and 2000 visa applications, only the mother made claims invoking Australia’s protection obligations under the Refugees Convention. The 2000 application was treated by the delegate as prevented by s 48A, and characterised (so the Full Court found) as a request that the Minister exercise his personal power under s 48B to permit a second protection visa application to be made by the mother. The Minister declined to exercise his discretion.

243    The appellant mother sought judicial review of the decision to treat her second protection visa application as invalid because of s 46(1)(d), read with s 48A. She was unsuccessful at first instance. The primary judge did not consider the positions of the two daughters. On appeal to the Full Court, Gray J (with whom Goldberg J agreed) described (at [10]) the course of the appeal:

The three appellants filed their notice of appeal in the Court on 21 March 2001. At the hearing of the appeal, the first appellant [the mother] appeared in person but made no submissions in support of the appeal. The Court granted leave to the third appellant to abandon the appeal, without making any order as to costs against the third appellant. It appears that the third appellant has been granted Australian citizenship. Counsel appeared for the second appellant, who sought leave to amend the notice of appeal. The proposed amendment would confine the appeal to issues relating to the second appellant. The grounds proposed suggested that the learned primary judge was in error in holding that s 48A of the Migration Act operated unilaterally to require the Minister not to consider the second appellant’s application for a protection visa, or alternatively that his Honour erred in failing to consider the application made by the second appellant. The Court reserved the question of leave to amend the notice of appeal and heard arguments that, if leave were granted, would be considered in relation to the appeal.

244    At [30], this is how Gray J described the decision subject to judicial review and appeal:

It is preferable to characterise the relevant decision as a determination pursuant to s 46(1)(d) of the Migration Act that the application of 19 December 2000 is prevented by s 48A and is therefore not a valid application. Such a decision is a judicially reviewable decision. It falls within s 475(1)(c) of the Migration Act, which encompasses ‘other decisions made under this Act, or the regulations, relating to visas’ and does not fall within the exceptions in s 475(2).

245    That being the decision under review, and given that the post-Dranichnikov amendments to s 48A(2) did not apply to the appellant mother’s protection visa applications, Gray J decided the appropriate course was to follow the Full Court’s decision in Dranichnikov, which his Honour considered to be correct.

246    At [33], his Honour said:

Consideration of whether an applicant ‘has made’ an earlier application may also involve a determination of what has been applied for. Clause (3)(c) of item 1126 in Sch 1 to the Migration Regulations recognises the possibility of an application for a protection visa on the ground that the applicant claims to be a member of the family unit of a person who is an applicant for such a visa. The subclause provides that such a dependent application may be made at the same time and place as, and combined with, the application by the person for a protection visa in his or her own right. Of course, this provision leaves open the logical possibility that a person may have both a claim in his or her own right and a claim to be a member of the family unit of a person with a claim in his or her own right. There appears to be nothing to prevent both claims from being pursued. The fact that an applicant may have pursued previously only a claim to be a family member of another person is, however, relevant to the question whether that applicant ‘has made’ an application. In Dranichnikov v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 397, 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. Accordingly, a decision to refuse a subsequent application by the person included was not authorised by the Migration Act or the Migration Regulations and the person was not precluded from making an application in his or her own right. At 403 [23] - [24], the Full Court referred to Pt A of form no 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.’

247    The passage from Dranichnikov at [23]-[24] which Gray J quoted with approval in this passage indicates that in Dranichnikov, the Full Court’s reasoning was based on the absence of any individual claims to invoke Australia’s protection obligations by a person who was included as a member of the family unit. The different criteria and the structure and content of the approved form, the Full Court held, “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”. Gray J agreed with this reasoning.

248    Separately, Gray J also referred (at [35]-[38]) to common law principles of legal capacity, and the requirements in the visa application form for parents or guardians to sign on behalf of an applicant who is under 18, “or lacks legal authority to sign on their own behalf”. I note the wording is “or”, not “and” as between these two alternatives. The latter appears to be a reference to persons who have intellectual or other disabilities affecting their legal capacity. At [38], Gray J said:

With respect to the making of applications pursuant to the Migration Act generally, the situation seems to be that it is necessary to inquire whether a particular non-adult applicant in fact had capacity (in the sense of sufficient understanding of the nature of the act involved) to make an application, at the time when the application was made. See Munkayilar v Minister for Immigration and Multicultural Affairs (1997) 49 ALD 588 at 591-592, Al Raied v Minister for Immigration and Multicultural Affairs [2001] FCA 313 at [36]-[39] and Jaffari v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 524 at 537 [37]. Thus, before it can be determined that a person ‘made’ a previous application, there must be a factual inquiry as to the age of that person and as to his or her capacity to understand the nature of such an application.

249    This appears to be alternate reasoning to the acceptance of Dranichnikov, which did not need to discuss or apply these common law principles because of the factual situation in that case. His Honour went on to identify error in the rejection of the 2000 visa application insofar as it related to the second appellant, because her position as an individual was not considered – whether under the Dranichnikov approach, or in terms of common law principles concerning legal capacity.

250    Carr J dissented. Having set out the terms of s 36, and referred to s 36(2), at [91], his Honour described how he saw the factual circumstances of the second appellant in the universe created by the Migration Act:

In my opinion, the combination of the fact that the second appellant signed Pt D of the application form and the fact that it was lodged with the respondent’s Department (on 19 December 2000) had the result that the second appellant applied for a protection visa. She thus invoked Australia’s protection obligations, if any, to her under the Convention. She did so on the basis that she did not have her own claims to be a refugee, but was to be included in her mother’s application. I disagree, respectfully, with Gray J’s view that there remains any factual issue about that point. In my opinion, as the second appellant did not complete Pt C of the application form she made no claims of her own to be a refugee, but nevertheless she made an application for a protection visa. By completing Pt D but not Pt C, the second appellant was in the same situation as Mrs Dranichnikov was when she made her first application – see 400 [8] of the Full Court’s reasoning. The second appellant is, in my view, to be treated as having applied for a visa on 19 December 2000 on the basis of being a member of Ms Soondur’s family unit rather than claiming refugee status in her own right.

(Emphasis added.)

251    Carr J also indicated his disagreement with the reasoning of the Full Court in Dranichnikov. His Honour said, at [95]-[98]:

I disagree, with respect, with the reasoning of the Full Court in Dranichnikov, but it is not necessary to decide whether it should be followed. That is because the whole basis of the second appellant’s case is that on 19 December 2000 she had made an application for a protection visa. As I see it, there is a flaw in the Full Court’s reasoning in Dranichnikov where their Honours stated (at 401 [12]): ‘Thus the criterion in s 36(2) can only be satisfied by a person who has been determined to be a refugee as defined in Art 1A of the Refugees Convention’ (emphasis added).

That is not how I read s 36(2). Section 36(2) simply specifies as one of the criteria (includes) for a protection visa, a requirement that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention. It does not say that such a person has to have been determined to be a refugee.

The term ‘protection obligations’ is not defined in the Act and is not a term used in the Convention. Accordingly, in my view, there is nothing in the Act which requires s 36(2) to be read restrictively by confining the ‘protection obligations’ referred to in that subsection to ‘protection obligations [to a person] as a refugee’, as the Full Court did in Dranichnikov (see also 401-402 [16] of their Honours reasons set out above). That is, there seems to be no logical reason for not extending the meaning of the expression ‘protection obligations’ under the Convention to include protection obligations to, for example, the children of a refugee. The children do not have to establish the same likelihood of persecution as may be visited upon, say, their father or mother. The scheme of the Act and the Regulations is such that it makes provision for the grant of protection visas to such family members even where they make no claims to be refugees. But it is not necessary to the determination of this appeal to decide whether the reasoning in Dranichnikov was thus flawed (as I think, with respect, it was). That is because, in my view, the second appellant’s application on 19 December 2000 for a protection visa was doomed to failure from the outset.

When persons complete Pt D of an application for a protection visa, they are, in my opinion, quite clearly invoking a protection obligation (on Australia’s part) to them under the Convention, as members of the family of a refugee. But, at the risk of being repetitious, they are not claiming refugee status for themselves.

252    I would respectfully agree with the reasoning of Carr J in these passages. It is consistent with, and supports, the structure of the legislative scheme to which I have given greatest prominence.

253    Notwithstanding my agreement with the reasoning of Carr J, if the ratio in Soondur was applicable, sitting as a member of another Full Court, I should follow that ratio, unless persuaded the reasoning which led to it is plainly wrong: Nguyen v Nguyen [1990] HCA 9; 169 CLR 245 at 268-269, Transurban City Link Ltd v Allan [1999] FCA 1723; 95 FCR 553 at 560-561; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; 150 FCR 214 at [187]-[192] per Allsop J. I do not consider the question whether Soondur is plainly wrong arises, and in any event, it was not addressed by the parties.

254    In my opinion, Soondur can and should be distinguished from the circumstances in the present appeal. It did not concern s 48A as it stood after the post-Dranichnikov amendments.

255    I consider that the course of legislative amendments after Dranichnikov, taken together with the features of the legislative scheme that I have described, demonstrates that after Dranichnikov, if not before (a matter on which I need not express a concluded view), the Parliament made it clear that each individual non-citizen must apply for and be granted a visa to become a lawful non-citizen (whether child or adult, with or without legal capacity), and must meet the criteria prescribed.

256    The particular series of amendments concerning protection visa applications by members of a family unit, and the circumstances they have been intended to address are, as the Minister submits at [32]-[33] of his written submissions, consistent with the initial post Dranichnikov amendments in 2001.

257    The Federal Circuit Court in the current proceeding was correct to distinguish Dranichnikov. For the reasons I have given above, a non-citizen who is a “member of the family unit”, whether adult or minor, has “made” an application for a protection visa within the terms of s 48A(2)(aa). The argument that was available and accepted in Dranichnikov and Soondur is no longer available.

258    The mischief sought to be corrected, as outlined in the Explanatory Memorandum set out at [108] of Griffiths J’s reasons, and omitting the emotive word “misuse”, is (as the Minister submits) apparent in the current circumstances. The first appellant applied for a protection visa as a member of her mother’s family unit, relying on her mother invoking Australia’s protection obligations directly. The same is true of her brother, the second appellant. That they were children at the time did not relieve them, as non-citizens, from having to apply for a visa and that is what occurred. The scheme gives no different legal or statutory effect to a visa application made by a minor than it does to a visa application made by an adult, nor to one made by a non-citizen without legal capacity. Yet now, the appellant mother applies as a member of her daughter’s family unit, with the daughter seeking to invoke Australia’s protection obligations directly. The appellant son did not seek to make his own claims in 2011, but in 2014, he sought to make claims essentially the same as those of the first appellant. Nevertheless, on the appellants’ arguments, he may well be able to seek a protection visa for a third time if he elects to argue his mother made the second protection visa application and the claims attributed to him in it, without his knowledge or informed consent. The circumstances of this appeal are an example of the mischief to which the Dranichnikov amendments were directed, because the same non-citizen seeks to apply twice for a protection visa, by-passing the legislative policy evinced by the presence of personal ministerial discretion in s 48B.

SZGME

259    SZGME was a case where there was a single application form used in respect of a daughter, her mother and her father. Initially the daughter made claims for protection and the form stated the mother and father did not. Subsequently, documentation was signed by the father and mother in which they did seek to make their own claims, but this did not reach the delegate before a decision was made.

260    Black CJ and Allsop J set out the course of events at [64]-[66]:

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.

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.

The Tribunal treated each as having claims that had been pressed. Between pp 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.

261    And then at [72]-[73]:

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 reg 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.

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.

(Emphasis added.)

262    What these passages make clear, in my opinion, is that their Honours considered each member of the family unit was making an application for a protection visa. Their Honours went on to find (at [86]) that there was nothing in the Regulations to preclude the mother and father, as members of the family unit making their own claims for protection at the review stage before the Tribunal, and this did not affect the validity of the family unit application.

263    Moore J disagreed with the majority that s 48A(1) was restricted to valid applications. However his Honour’s conclusion (at [185]) is equally relevant to the issues in the present appeal:

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).

(Emphasis added.)

264    At [14], Black CJ and Allsop J described s 48A in terms which are not inconsistent with the view I have taken, although their Honours were dealing with a different aspect of s 48A – namely, whether the first visa application needed to be a valid application.

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 486 at [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 [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 Subdiv 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.

(Emphasis added.)

265    I do not consider that their Honours’ observations in SZGME are irrelevant because the members of the family unit concerned were adults at the time the application was first made (the daughter was 20 at that time – see [84] of the Full Court reasons). As I have said, except for specific circumstances (see, for example, reg 2.08 in relation to newborn children) the legislative scheme does not purport to treat applicants for a visa who are minors any differently in terms of the need to apply for, and be granted, a visa.

266    In summary, there is nothing in the earlier authorities of this Court which leads me to reach a different conclusion on the appeal.

Answering the separate question

267    I agree with Robertson, Griffiths and Wigney JJ that it was unnecessary for the separate question, as formulated, to focus on the Full Court decision in Kim, rather than simply on the proper construction of s 48A(1) and its application to the circumstances of the appellants’ case. The focus on Kim appears originally to have come from the appellants’ migration agent who, in his letter accompanying the second protection visa application sought to draw a parallel, in terms of lack of awareness, between the first appellant at the time of the first protection visa application and the appellant in Kim.

268    Although it has been subject to criticism, this Court has not re-formulated the separate question stated and answered by the Federal Circuit Court. The parties have not been heard on what form any different question should take. In my respectful opinion, it would not be appropriate at this stage for the Court to do other than consider the appeal on the basis of the correctness or otherwise of the answer given by the Federal Circuit Court to the question as stated.

269    The Federal Circuit Court answered the stated question “no”. I consider that answer was correct because on a proper construction of s 48A(1), a non-citizen who was included as a member of the family unit of a another non-citizen who invoked Australia’s protection obligations was a person who applied for a protection visa and therefore “has made” an application for a protection visa, reading s 48A(1) with s 48A(2).

270    The appeal should be dismissed, with costs.

Associate:

Dated:    7 June 2017

REASONS FOR JUDGMENT

WIGNEY J:

271    I have had the benefit of reading in draft form the reasons for judgment of Griffiths J and the brief concurring reasons of Robertson J. I agree with the reasons for judgment of Griffiths J and the orders he proposes. I also agree with the additional reasons of Robertson J. I wish to add but a few brief observations.

272    It was common ground between the parties that the first protection visa application was a valid visa application insofar as both the son and daughter were concerned. The basis upon which the parties agreed that the first application was valid appeared to be that, at the time the application was lodged, the son and daughter did not have the competence or capacity to make informed decisions concerning the making of an application for a protection visa. In accordance with common law principles, it followed that their mother, in her capacity as the guardian of her children, had the power or authority to make decisions and act on their behalf in lodging the visa application: Secretary, Department of Health and Community Services v JWB and SMB [1992] HCA 15; 175 CLR 218 at 235-239; Re Woolley; Ex parte Applicants M276/2003 [HCA] 49; 225 CLR 1 at [97]-[104], [152]-[156].

273    Where the parties differed was what followed, in terms of the application of s 48A of the Migration Act 1958 (Cth), from the fact that the first application was a valid application.

274    The Minister’s case, in short, was that where a parent has lawfully lodged a protection visa application on behalf of their child who lacks competence or capacity, the child “has made” an application for a protection visa for the purposes of s 48A. He submitted that the Migration Act does not distinguish between a visa application made by a non-citizen, and a visa application made on behalf of a non-citizen. The reference in s 48A to the circumstance that a non-citizen has made an application for a protection visa conveys no more than that “the non-citizen was the person by whom …. an earlier, valid application is taken to have been made”.

275    I do not agree. In my opinion, the considerations referred to by Robertson J militate against the construction favoured by the Minister. It is one thing to say that a protection visa application has been validly made by a parent on behalf of a child; it is another thing to say that in those circumstances the child “has made” the protection visa application. I am unable to see anything in the text, context, purpose or legislative history of s 48A to support the proposition that the meaning of the expression “has made” should be extended such that it encompasses the making of a visa application on behalf of a child or other person who lacks competence or capacity.

276    Like Griffiths J, I also see force in the reasoning of Gray J (with whom Goldberg J relevantly agreed) in Soondur v Minister for Immigration and Multicultural Affairs [2002] FCAFC 324; 122 FCR 578 at [35]-[38]. That reasoning would tend to suggest that a protection visa application made by a parent on behalf of their child who lacks competence or capacity is not made by the child for the purposes of s 48A. At the very least, before a finding can be made that a person “made” a previous application for the purposes of s 48A, “there must be a factual inquiry as to the age of that person and as to his or her capacity to understand the nature of such an application”: Soondur at [38].

277    The appellants’ case, both below and on appeal, focussed almost entirely on whether the son and daughter knew that their mother had lodged a protection visa application on their behalf. They submitted, in effect, that the words “has made” in s 48A should be construed as meaning “has validly and knowingly made”. They called in aid, in support of that submission, the judgment of the Full Court in Minister for Immigration and Border Protection v Kim [2014] FCAFC 47; 221 FCR 523, a case which concerned the different, though superficially similar, provision in s 48 of the Migration Act. They contended that the son and daughter could not be found to have made the first protection visa application if they did not know that their mother had lodged that application on their behalf.

278    That was not the correct approach to take to the question of construction of s 48A, or the resolution of the proceeding at first instance. That approach appears to have led the primary judge to resolve the proceeding by posing and answering a separate and preliminary question about whether the conclusion reached by the Full Court in Kim in respect of the proper construction of s 48 “applies equally” to s 48A. I agree with Griffiths J that the separate question posed by the primary judge was expressed too narrowly and was in any event a distraction. It meant that, instead of squarely addressing the construction of s 48A, which was the central legal issue in the proceeding, the parties’ submissions, and the primary judge’s reasons, focussed almost entirely on the supposed similarities and differences between ss 48 and 48A and whether the reasoning in Kim was applicable to the construction of s 48A. It resulted in the appellants’ appeal ground and written submissions being devoted to the question of whether the primary judge erred in concluding that the reasoning in Kim was not applicable to the construction of s 48A. It also led the Minister to file a notice of contention and submit that Kim was plainly wrong. That was and is a false issue.

279    The question of knowledge may be important in some cases in determining whether an applicant for a protection visa has made an earlier visa application for the purposes of s 48A of the Migration Act. For example, a protection visa application signed and lodged by a parent on behalf of their child who was 17 years old, and who plainly had the capacity to understand the nature of such an application, might be found to have been made by the child for the purposes of s 48A if it was shown that the child knew and understood that the application was being lodged on their behalf. If, on the other hand, the 17 year old child was estranged from their parent and did not know anything about the protection visa application, it could scarcely be said that the child had made the application for the purposes of s 48A. Indeed, as the Minister acknowledged during argument, such an application would not be a valid application and could not attract the operation of s 48A.

280    It is not, however, always meaningful, let alone determinative, to approach the question of whether s 48A was engaged in the circumstances by asking whether the child on whose behalf an application was lodged knew about the application. For example, if a parent lodged a protection visa application on behalf of a 1 year old child, it would not be meaningful to inquire into whether the child knew that the application was being lodged on their behalf. Indeed their knowledge would essentially be irrelevant because the child would not in any event have the capacity to understand the nature of such an application.

281    On the Minister’s construction of s 48A, the 1 year old child in the example just given would be taken to have made the protection visa application, despite the fact that the child plainly would not have had the capacity to appreciate that an application was being lodged on their behalf, let alone understand the nature of such an application. That is because, so the Minister’s argument went, the parent had the power and authority to lodge the application on behalf of the child and the words “has made” in s 48A convey no more than that the child was the person by whom a valid application is taken to have been made. For the reasons already given, that contention and that construction of s 48A has no merit and should be rejected.

282    In the end result, the primary judge misconstrued s 48A and was wrong to dismiss the appellants’ application on the basis of the separate question. It is unnecessary to consider the Minister’s notice of contention concerning Kim. As Griffiths J has explained, it will be necessary for the matter to be remitted to the Federal Circuit Court of Australia so that, in accordance with Soondur, there can be a factual inquiry as to the knowledge and capacity of the son and daughter to have understood the nature of the first protection visa application which was lodged on their behalf.

Associate:

Dated:    7 June 2017