Federal Court of Australia

FEL17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 153

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the respondent to be agreed or assessed.

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

REASONS FOR JUDGMENT

SNADEN J:

1    I have had the advantage of reading a draft of the reasons of Abraham and Halley JJ in this appeal. Those reasons contain a comprehensive recitation of the relevant factual and statutory background, none of which I need replicate. Regrettably and for reasons that I can briefly state, I have come to a different conclusion than their Honours. I would allow the appeal, set aside the primary judgment and the decision of the delegate to which it related, and remit for further determination the visa application that was the subject of those decisions.

2    The sole question posed for consideration on the appeal is whether a decision to refuse an application for a protection visa that is:

(1)    made under s 65 of the Migration Act 1958 (Cth) (the “Act”); and, later,

(2)    affirmed by the Administrative Appeals Tribunal (the “Tribunal”) under s 415(2)(a),

suffices, after the exercise of the power conferred by s 417(1), to engage the limitation prescribed by s 48A(1) of the Act. To phrase things more succinctly: if, following the affirmed refusal of a protection visa application, the Minister is moved to intervene under s 417(1) of the Act, does the protection visa application remain refused? The majority would answer that question in the affirmative, much as did the learned primary judge and the delegate who made the decision here in focus. I favour the contrary conclusion.

3    Section 48A(1) operates to prevent the making of an application for a protection visa by a person who has had a previous protection visa application refused. It is, I think, clear enough that an application for a protection visa will stand “refused” for the purposes of s 48A(1) if there is a decision made under the Act that operates with that legal effect. A decision made to that effect by a Ministerial delegate under s 65 of the Act (as in this case) would quite clearly qualify.

4    Such a decision is, of course, open to review on its merits under pt 7 of the Act. In that eventuality, the Tribunal has open to it the powers conferred by s 415(2) of the Act. Where, as here, a decision is made on review to affirm an initial refusal, it is that affirmation that “…becomes the sole source of legal effect for the refusal”: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 (“Plaintiff M174”), 247 [92] (Edelman J); see also 242 [70] (Gageler, Keane and Nettle JJ). In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union & Ors (2016) 247 FCR 138 (Barker, Rangiah and Wigney JJ), this court considered the point as applicable to appeals (so styled) in the Fair Work Commission, and specifically to appeal decisions involving the exercise of an affirmation power analogous to that conferred by s 415(2)(a) of the Act. The court observed (at 147 [39]) that:

…a substantive appeal [before a full bench of the Fair Work Commission]…will have the effect, usually, either of affirming a first instance decision or replacing it in some relevant way. The decision of the Commission then having operative effect will be the Full Bench decision on appeal, even if it operates by affirming the first instance decision the subject of the appeal.

5    Section 417 of the Act confers upon the Minister a power to “substitute” a decision made under s 415 for one that is “more favourable” to an applicant. The verb “substitute”, read in context and with regard to the statutory purpose by which the section is evidently animated, is to be read such that an exercise of the power conferred by s 417(1) serves to relieve of operative or legal effect the decision that was made under s 415; and to leave the “more favourable” decision to operate with legal effect in its stead.

6    More to the point (for present purposes), a decision under s 417(1) of the Act to substitute a more favourable decision for one of affirmation made under s 415 does not serve to resuscitate the operative or legal effect of the initial decision that was the subject of that affirmation (in this case, the initial decision to refuse the appellant’s protection visa application). As the High Court has made clear, an initial refusal decision ceases to have “independent continuing legal operation” from the point that it is affirmed: Plaintiff M174, 242 [70] (Gageler, Keane and Nettle JJ). Once the process of substitution contemplated by s 417(1) transpires, the only decision with any operative or legal effect under the Act is the decision made under that section. There is nothing about the subject matter, scope or purpose of the Act that should require or suggest that the exercise of power under s 417(1) operates so as to revive the by-then-extinguished legal effect of the decision whose affirmation the Minister has seen fit to replace with something more favourable.

7    It follows that, at the time of the delegate’s decision to refuse the appellant’s application in this matter, it was not the case that his earlier protection visa application had been refused. There was no decision with continuing operative or legal effect to that end. Section 48A(1) of the Act had no application and the delegate’s decision to proceed upon the contrary premise was an error of jurisdiction. The learned primary judge was, with respect, wrong to conclude otherwise.

Associate:

Dated:    12 September 2023

REASONS FOR JUDGMENT

ABRAHAM AND HALLEY JJ:

8    This is an appeal from a decision of the Federal Circuit and Family Court of Australia: FEL17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 4 (Primary Judgment or PJ). In that decision, the primary judge dismissed the appellant’s application for judicial review of a decision of a delegate (Delegate) of the respondent (Minister) dated 25 October 2017.

9    The facts relevant to this appeal were outlined by the primary judge at PJ [2]-[6], and are briefly summarised as follows.

10    The appellant applied for a protection visa on 24 December 2013: PJ [2]. That application was refused by a delegate of the Minister on 23 July 2014: PJ [3], with the Administrative Appeals Tribunal (Tribunal) dismissing a challenge to that decision, and affirming it, on 11 September 2015 (Tribunal’s Decision): PJ [3].

11    On 12 September 2017, the Assistant Minister for Immigration and Border Protection (Assistant Minister) exercised his power under s 417(1) of the Migration Act 1958 (Cth) (Migration Act) to substitute another decision for that of the Tribunal, being to grant the appellant a Visitor (Subclass 600) visa for three months with a no further stay condition (Condition 8503) (visitor visa) (Assistant Minister’s Decision): PJ [4].

12    On 12 October 2017, the appellant made a second application for a protection visa: PJ [6]. On 25 October 2017, the Delegate found that application to be invalid on the basis that it was barred by the operation of s 48A of the Migration Act (Delegate’s Decision): PJ [6]. It is this decision which is the subject of these proceedings.

13    The reasons given for the Delegate’s Decision are extracted in full at PJ [10]:

A decision has previously been made to refuse to grant you a protection visa, or you have had a protection visa cancelled. Under section 48A of the Migration Act 1958 a person who has not left Australia since their protection visa was refused or cancelled is prevented from making a subsequent protection visa application while they remain in Australia.

The Minister has the power under section 48B of the Migration Act to allow a person to apply again for a protection visa if he decides it is in the public interest to do so. The Minister is under no obligation to consider exercising this power.

Lodging another application

You cannot make another valid visa application while in Australia, unless the Minister personally decides that it is in the public interest to allow you to do so.

Review rights

There is no right of merits review of the assessment that an application is invalid.

14    On 13 January 2023, the primary judge dismissed the appellant’s challenge to the Delegate’s Decision: PJ [28].

15    The appellant appeals from the primary judge’s decision, alleging one ground of appeal:

The primary judge erred in finding that the appellant had been “refused” a protection visa within the meaning of s 48A of the Migration Act 1958 in circumstances where the decision of the Administrative Appeals Tribunal affirming the decision of the Minister’s delegate in relation to his protection visa application had been substituted by the Minister granting him a visitor (subclass 600) visa.

16    For the reasons which follow, we dismiss the appeal.

Statutory scheme

17    Relevant to the appellant’s submissions are ss 48, 48A and 48B of the Migration Act. At the relevant time, those provisions were in the following terms:

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)     after last entering Australia:

(i)     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), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds), 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 or have an application for such a visa made on his or her behalf, but not for a visa of any other class.

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

(a)    does not hold a substantive visa; and

(b)    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 an application had been made on the non-citizen’s behalf, 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;

may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.

(2)     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:

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

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

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

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

(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.

(4)     In paragraphs (1)(b) and (1A)(b):

(a)    a reference to an application for a visa made by or on behalf of a non-citizen includes a reference to an application for a visa that is taken to have been made by the non-citizen by the operation of this Act or a regulation; and

(b)     a reference to the cancellation of a visa includes a reference to the cancellation of a visa for which an application is taken to have been made by the operation of this Act or a regulation.

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)     applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined);

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

(1AA)     Subject to section 48B, if:

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

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

(i)    the application has been finally determined; or

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(1D)    In paragraphs (1)(a) and (b) and (1AA)(a) and (b), a reference to an application for a protection visa made by or on behalf of a non-citizen includes a reference to an application for a protection visa that is taken to have been made by the non-citizen by the operation of this Act or a regulation.

(1E)     In subsection (1B), a reference to the cancellation of a protection visa includes a reference to the cancellation of a protection visa in relation to which an application for a protection visa is taken to have been made by the operation of this Act or a regulation.

(2)     In this section:

application for a protection visa means:

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

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

(aaa)    an application for a visa, a criterion for which is that the applicant is a non-citizen who is a refugee; or

(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; or

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

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

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 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.

18    Relevant also are ss 415 and 417 of the Migration Act:

415 Tribunal powers on review of Part 7-reviewable decisions

(1)    The Tribunal may, for the purposes of the review of a Part 7-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.

(2)     The Tribunal may:

(a)    affirm the decision; or

(b)    vary the decision; or

(c)    if the decision relates to a prescribed matter—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or

(d)     set the decision aside and substitute a new decision; or

(e)     if the applicant fails to appear—exercise a power under section 426A in relation to the dismissal or reinstatement of an application.

(3)     If the Tribunal:

(a)     varies the decision; or

(b)     sets aside the decision and substitutes a new decision;

the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.

(4)     To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.

417 Minister may substitute more favourable decision

(1)     If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

(2)     In exercising the power under subsection (1) on or after 1 September 1994, the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act.

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

(4)     If the Minister substitutes a decision under subsection (1), he or she must cause to be laid before each House of the Parliament a statement that:

(a)     sets out the decision of the Tribunal; and

(b)     sets out the decision substituted by the Minister; and

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

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

(a)     the name of the applicant; or

(b)     any information that may identify the applicant; 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.

(6)     A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after:

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

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

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

The primary judgment

19    In the Court below, the appellant contended that his application for a second protection visa was valid because the Assistant Minister’s Decision had effectively overturned the visa refusal for the purposes of s 48A of the Migration Act: PJ [13], see also PJ [11]. That is, the appellant submitted that when the Tribunal affirmed the Delegate’s Decision, the Tribunal’s Decision became the operative decision: PJ [18]. The Assistant Minister’s Decision, it was contended, then overtook the Tribunal’s Decision once substituted, with the result being that there was no operative refusal of the protection visa application for the purposes of s 48A of the Migration Act: PJ [18].

20    The primary judge considered the appellant’s submissions at PJ [11]-[19], including the appellant’s submissions in relation to Al Tekriti v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 772; (2004) 138 FCR 60 (Al Tekriti), Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 (Plaintiff M174/2016) and Chou v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 130; (2021) 286 FCR 459 (Chou).

21    The primary judge was not persuaded that the conclusion contended for by the appellant ought to be reached in the circumstances of this case: PJ [20].

22    The primary judge considered the application of s 48A to be unchanged by the Tribunal’s Decision (which affirmed the Delegate’s Decision): PJ [21].

23    The primary judge noted that while the Assistant Minister’s Decision substituted a “more favourable” decision to that of the Tribunal, it did not purport to set aside (or affirm) the Delegate’s Decision: PJ [24]. Instead, a decision was made by the Assistant Minister under s 417 of the Migration Act to substitute for the Tribunal’s Decision a new decision to grant the appellant an entirely different category of visa: PJ [24].

24    Though the primary judge noted (at PJ [25]) that an exercise of power under s 417 of the Migration Act could conceivably, in an appropriate case, effect the setting aside of the Delegate’s Decision in a manner similar to s 415(2)(d), the primary judge was not persuaded that this had occurred in the present case:

In the present case, the exercise of power under s 417 was not directed towards the setting aside of the Delegate’s decision. In effect, its exercise maintained refusal of the applicant’s protection visa application. The Assistant Minister did not grant the applicant the protection visa for which he had applied. Instead, the Assistant Minister granted the applicant a different and far more limited class of visa that allowed him to remain in Australia for a period of 3 months after his protection visa application had been refused. I do not consider that the intended effect of this was to supplant or otherwise set aside refusal of the applicant’s protection visa application for the purposes of s 48A of the Act. Nor am I persuaded that this effect necessarily occurred on account of the substitution of the Tribunal’s decision under s 417: PJ [26].

25    The primary judge therefore concluded that the refusal of the appellant’s first protection visa application remained in place for the purposes of s 48A of the Migration Act, such that the Delegate had correctly determined that the appellant’s second protection visa application was invalid: PJ [27].

Ground of Appeal

Submissions

26    The appellant’s case is that he had not previously been refused a protection visa because the Tribunal’s Decision, which affirmed the Delegate’s Decision, had itself been substituted with a decision made personally by the Assistant Minister under s 417 of the Migration Act to grant him a visa of a different class. It is contended that the substitution of the Tribunal’s Decision meant that neither the decision of the Delegate to refuse the appellant a protection visa nor the decision of the Tribunal affirming that decision continued to have any operative legal effect. The appellant therefore submitted that the primary judge erred by attributing continuing legal force to the Delegate’s Decision, in circumstances where the legal force of that decision had been extinguished by the Tribunal’s Decision, and where the Assistant Minister had not purported to revive the Delegate’s Decision upon substitution of the Tribunal’s Decision.

27    The appellant’s submission is premised on the basis that the Delegate’s Decision “ceased to have legal effect” once the Tribunal had affirmed that decision. The appellant submitted that when the Tribunal affirmed the Delegate’s Decision to refuse a protection visa, the Tribunal’s Decision became the decision to refuse a protection visa. In making this submission, the appellant relied on Plaintiff M174/2016 at [70], as referred to in Chou at [143]. On the appellant’s case, once the three month visitor visa was substituted pursuant to s 417 of the Migration Act, it, being the “more favourable decision”, became the outcome of the review under s 415 such that the Tribunal’s Decision affirming the Delegate’s Decision was no longer in place. Therefore, it was said, the appellant had no longer been refused a protection visa. On the appellant’s case, the decision pursuant to s 417 prevents s 48A from ever applying (which the appellant submits is distinct from s 48B which removes the operation of s 48A where it does apply).

28    The appellant’s submission is directed at enabling the appellant’s second protection visa application to be valid, and therefore able to be considered.

Consideration

29    Before addressing the crux of the appellant’s submission as to why the second protection visa application is said to be valid, it is first appropriate to consider ss 48, 48A and 48B of the Migration Act.

30    The starting point for ascertaining the meaning of a statutory provision is the text of the statute, having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]-[71]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47].

31    Sections 48, 48A and 48B are in a legislative scheme where s 65 of the Migration Act relevantly provides that after considering a valid visa application, the Minister, if satisfied that the criteria for the grant of the visa are met, and the grant of the visa is not otherwise prevented by any provision of the Migration Act or a law of the Commonwealth, is to grant the visa and, if not so satisfied, the Minister is required to refuse the visa. The Minister has a duty to consider a valid visa application: s 47(1) of the Migration Act, which continues until the application is withdrawn, the visa is granted or refused, or “further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration)”: s 47(2) of the Migration Act. The Minister is not to consider an application which is not valid, and a decision that an application is not valid, is not a decision to refuse to grant a visa: s 47(3) and (4) of the Migration Act.

32    Section 48 provides that a non-citizen in the migration zone who does not hold a substantive visa and, after last entering Australia was refused a visa, or held a visa that was cancelled under certain provisions of the Migration Act, may apply for a visa of a class prescribed for the purposes of that section. Regulation 2.12 of the Migration Regulations 1994 (Cth) lists classes of visas prescribed for the purposes of s 48. Relevantly, “(c) protection visas” are included in that list.

33    As can be seen from s 48A, relevant to these proceedings, a non-citizen who has had an application for a protection visa refused cannot make a further application for a protection visa while the non-citizen is in the migration zone.

34    When s 48A was inserted into the Migration Act, s 48B was also enacted which provides the Minister with the power to exercise a non-compellable discretion in favour of allowing a particular individual to lodge a repeat application for a protection visa if the Minister thinks it is in the public interest to do so. The power is only to be exercised personally, and when there is a decision to exercise the power, it must be reported to Parliament: s 48B(2) and (3) of the Migration Act.

35    Section 48 was inserted by the Migration Reform Act 1992 (Cth). Later, ss 48A and 48B were inserted by the Migration Legislation Amendment Act (No. 4) 1995 (Cth). The Explanatory Memorandum to that Act stated at [12]:

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

36    The relevant Explanatory Memorandum also stated at [13] that the proposed new s 48A:

… provides that a non-citizen, while he or she remains in the migration zone, who has made an application or applications for protection visas which have been refused may not make a further application for a protection visa. This provision applies even if a non-citizen’s application for a protection visa has not been finally determined (that is, if, for example, it is being reviewed by the RRT). …

37    At paragraph [14], the Explanatory Memorandum noted that proposed s 48B “provides the Minister with the power to exercise a non-compellable discretion in favour of allowing a particular individual to lodge a repeat application if the Minister thinks it is in the public interest to do so.”

38    In Al Tekriti, Mansfield J made the following observations in respect to this aspect of the Migration Act:

[24]    Sections 48, 48A and 48B prescribe when a non-citizen in Australia (or more accurately in the ‘migration zone’) may apply for certain visas. Those provisions are designed to control the possible proliferation of visa applications by a particular person.

[25]    Generally, only one application for a protection visa may be made by a person in Australia, unless the respondent by written notice permits for a limited period of seven days the making of a further protection visa application: ss 48A and 48B. Such permission may only be given in the public interest. The significance of such permission is indicated by the requirement that the respondent personally must exercise that power, and must expose the decision and the reasons for it before each House of the Parliament. There is a firm legislative policy evident in s 48A and 48B to ensure that, except in the public interest, only one application for a protection visa should be permitted…

39    The text of s 48A states that it applies subject only to s 48B: s 48A(1) of the Migration Act.

40    Section 415 of the Migration Act provides the powers of a Tribunal on review. As the Minister submitted, the text of s 415 reflects that it is only where the Tribunal varies a delegate’s decision, or sets aside a delegate’s decision and substitutes a new decision, that s 415(3) provides that “the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister”. Accordingly, the Minister was correct in contending that the Tribunal’s Decision to affirm the Delegate’s Decision under s 415(2)(a) is not taken to be a decision of the Minister (or Delegate).

41    In Madafferi v Minister for Immigration & Multicultural Affairs [2002] FCAFC 220; (2002) 118 FCR 326, the Full Court observed at [68]:

By virtue of s 43 of the Administrative Appeals Tribunal Act empowering it to “exercise all the powers and discretions that are conferred by the relevant enactment on the person who made the decision”, the AAT stands in place of the primary decision-maker – Otter Gold Mines Ltd v Australian Securities Commission (1997) 26 AAR 99; Liedig v Commissioner of Taxation (Cth) (1994) 50 FCR 461; Commissioner of Taxation (Cth) v Swift (1989) 20 ATR 1434; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. However as was pointed out in Powell v The Administrative Appeals Tribunal and Anor (1998) 89 FCR 1 at 12 (French J) the source of the AAT’s power is s 43 of the AAT Act. It does not exercise afresh the power conferred by the enactment under which the decision was made. A fortiori, when it affirms a decision or sets it aside and remits it for reconsideration, it does not exercise a power conferred by the enactment under which the primary decision-maker has made his or her decision. See also Szajntop v Gerber (1992) 23 ATR 403 (Hill J). Analogous reasoning in Daher v Minister for Immigration and Ethnic Affairs (1996) 70 FCR 585 at 507 led North J to conclude that a decision of the Refugee Review Tribunal affirming a decision of the Minister to refuse a visa was not itself a decision to refuse the grant of the visa. The reasoning in Powell led to the conclusion that a decision of the AAT affirming a delegate’s decision was not a judicially reviewable decision under the Migration Act and therefore was unaffected by the limitations on the jurisdiction of the Court imposed by Pt 8 as it stood prior to the amendments which came into effect in October 2001.

42    Statements to the same effect were made in Trout v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 583 at [66]-[68] and SLGS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1055; (2022) 179 ALD 156 at [78]-[80].

43    Although the Tribunal may exercise all the powers and discretions conferred upon the original decision-maker, its task in conducting a merits review application is not, in itself, an exercise of a power to grant or refuse to grant a visa. The Tribunal does not decide a visa application under s 65 of the Migration Act. Rather the Tribunal, pursuant to s 500(1)(c) of the Migration Act, conducts a review of the decision to refuse the grant of a protection visa under s 65 and arrives at a decision under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) to either affirm, vary, or set aside the decision made under s 65: see s 415 of the Migration Act. The Tribunal in this case did not, contrary to the appellant’s submission, make a decision itself refusing to grant the appellant a protection visa. The Tribunal, in affirming the Delegate’s Decision, “made a decision which operated upon the initial decision of the delegate”: Daher v Minister for Immigration and Ethnic Affairs [1996] FCA 1011; (1996) 70 FCR 585 at 587. As explained below, nothing in [70] of Plaintiff M174/2016 suggests otherwise.

44    As the Minister correctly noted, the exercise of power by the Assistant Minister under s 417(1) of the Migration Act to grant the appellant a visitor visa is not the exercise of the power under s 415 (which provides the Tribunal’s powers). It is not the exercise of the power in s 415(2)(d) to set aside the Delegate’s Decision and substitute a new decision. The Assistant Minister did not set aside the Delegate’s Decision. We note that s 417 only provides for the substitution of a decision, which is to be contrasted with the Tribunal’s powers under s 415 which include the power to “set the decision aside and substitute a new decision”.

45    Against that background, we turn to consider Plaintiff M174/2016.

46    In that case, the High Court was concerned with the jurisdiction of the Immigration Assessment Authority under Part 7AA of the Migration Act to review a decision of a delegate said to be affected by jurisdictional error, and the application of the principle of construction arising from Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd [1979] FCA 37; (1979) 24 ALR 307 (Brian Lawlor). That principle of construction is that the reference in s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) to a “decision” in respect of which an enactment might provide for review by that Tribunal, is a reference to nothing more than “a decision in fact made, regardless of whether or not it is a legally effective decision”: Brian Lawlor at 342; see also Plaintiff M174/2016 at [39].

47    Paragraph [70] of Plaintiff M174/2016 (which is the basis for the appellant’s submission) is to be considered in that context. It is appropriate to refer also to [18] and [40] of Plaintiff M174/2016 (referred to by the parties in submission).

48    At [18] of Plaintiff M174/2016, Gageler, Keane and Nettle JJ observed:

The effect of the Authority affirming the fast track reviewable decision under review is that it is no longer solely the decision of the Minister or delegate to refuse to grant the visa, but rather the decision as affirmed by the Authority, that constitutes the determination of the fast track applicant’s valid application for a protection visa. That effect of the Authority affirming the fast track reviewable decision under review bears on the nature of a fast track reviewable decision that is capable of being the subject of that review in a manner which will be explored later in these reasons.

49    At [40], Gageler, Keane and Nettle JJ observed:

The Brian Lawlor construction was applied by the Full Court of the Federal Court to former references in the Act to “decisions” of the Minister or of a delegate capable of being reviewed by each of the former Refugee Review Tribunal and the former Migration Review Tribunal. A pertinent example, to which the Minister draws attention in the present case, is Kim v Minister for Immigration and Citizenship. The Migration Review Tribunal was there held to have had both jurisdiction to review, and power to affirm, a decision of a delegate which had been conceded to be invalid in a prior proceeding for relief under s 39B of the Judiciary Act 1903 (Cth). The affirmation was held to have resulted in a valid affirmed decision which operated from the date of the invalid original decision.

50    In that context, Gageler, Keane and Nettle JJ observed at [70] that:

The reason is not that review by the Authority in some way “cures” a defect of jurisdiction in the decision of the Minister or delegate that is under review. The reason is that, once a fast track reviewable decision is affirmed by the Authority, it is the order of the Authority operating by force of s 473CC(2)(a) of the Act to affirm the decision of the Minister or delegate that alone gives the decision of the Minister or delegate legal operation. Once affirmed by the Authority, the decision of the Minister or delegate has no independent continuing legal operation by force of s 65 of the Act, whether actual or purported. For that reason, any defect of jurisdiction in the decision of the Minister or delegate can simply have no bearing on the legal position of the referred applicant [emphasis added].

51    The jurisdictional error relied on in Plaintiff M174/2016, said to be a breach of s 57 of the Migration Act, was not established: Plaintiff M174/2016 at [72]. The plurality relevantly found that the fast track reviewable decision (the delegate’s decision) was “nothing more than a decision to refuse to grant a protection visa to [the plaintiff] that is made in fact”: Plaintiff M174/2016 at [69], see also at [52], and therefore the challenge to the delegate’s decision had to fail (because of the reasons explained in [70] of Plaintiff M174/2016) “unless the plaintiff’s challenge to the Authority’s decision can succeed on an independent ground”: Plaintiff M174/2016 at [69].

52    It is the italicised sentence in [70] of Plaintiff M174/2016 – that “[o]nce affirmed by the Authority, the decision of the Minister or delegate has no independent continuing legal operation by force of s 65 of the Act, whether actual or purported” – which is the basis for the appellant’s submission. On the appellant’s submission, two consequences follow from that sentence: the Delegate’s Decision ceases to have legal effect, and the Tribunal’s Decision is the decision to refuse the appellant a protection visa. Based on that reasoning, the appellant’s submission is that when the Tribunal’s Decision to refuse a protection visa is substituted by the Assistant Minister’s Decision to grant the appellant a three month visitor visa, there is no longer any decision refusing the appellant a protection visa. On that basis, s 48A does not apply, as the appellant has not already been refused a protection visa.

53    That reasoning cannot be accepted.

54    As the Minister correctly submitted, the Tribunal’s Decision is not a decision to refuse a visa under s 65 of the Migration Act, but is the affirmation of the Delegate’s Decision to do so. The power in s 415(2)(a) is to affirm the Delegate’s Decision. That is not altered by the fact that the Delegate’s Decision ceases to have independent legal effect once the Tribunal has affirmed the decision. The character of the Tribunal’s Decision is not altered. The decision to refuse a protection visa is no longer a decision solely of the Delegate, but rather it is a decision affirmed by the Tribunal. It is the Tribunal’s affirmation that gives that decision continuing force – the Delegate’s Decision had legal effect before the Tribunal’s affirmation occurred. To use the language in [70] of Plaintiff M174/2016, it is the order of the Tribunal, here operating by force of s 415(2)(a), to affirm the decision of the Delegate that gives the decision of the Delegate its continuing legal operation. Contrary to the appellant’s submission, the Tribunal’s Decision does not substitute the Delegate’s Decision, it gives it continuing legal effect. The power of a Tribunal to substitute a decision under s 415(2)(d) is limited to circumstances where a decision is set aside. In this case, the Delegate’s Decision was never set aside, but rather it was affirmed.

55    The appellant’s submission proceeds as if the Delegate’s Decision is forever extinguished because it has no independent legal force once affirmed by the Tribunal. However the Delegate’s Decision does not disappear or cease to exist. As a matter of fact that decision remains. It is that decision which is affirmed by the Tribunal, and to which continuing legal operation is given. It is that decision which refused the protection visa. That decision has not been set aside.

56    If the Tribunal’s Decision has no legal effect, or no longer has legal effect, the Delegate’s Decision has legal effect in its own right. It has not been set aside.

57    The parties also referred to Kim v Minister for Immigration and Citizenship [2008] FCAFC 73; (2008) 167 FCR 578 (Kim). The Minister drew particular attention to [23] of Kim, where Tamberlin J (with whom Besanko J agreed at [42]) said:

It is now settled law that an affirmation of a decision of the delegate by the Tribunal has the effect that the decision of the delegate is the original decision which continues to operate and is not substituted by the later decision of the Tribunal: see Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246 at 249-50.

58    A debate occurred at the hearing as to the status of Kim in light of Plaintiff M174/2016.

59    As seen at [49] above, the plurality in Kim was referred to at [40] of Plaintiff M174/2016 for the proposition that the affirmation in that case was held to have resulted in a valid affirmed decision which operated from the date of the invalid original decision. As the Minister submitted, Kim was referred to without criticism. Plaintiff M174/2016 did not overrule Kim or doubt its correctness. Paragraph [23] of Kim, read in context, is not inconsistent with Plaintiff M174/2016. The Delegate’s Decision is not substituted by the later decision of the Tribunal. Rather, the Tribunal’s Decision affirming the Delegate’s Decision gives it continuing legal effect. The Delegate’s Decision has no legal effect independent of that affirmation by the Tribunal.

60    Chou also does not assist the appellant. In Chou, the effect of an erroneous Tribunal decision affirming the cancellation of a visa (in relation to a mother) was considered in respect of a consequential cancellation decision which had been made by the Tribunal (in relation to her child). The appellant relied on the following passage in Chou:

[142]    The Minister contended that the cancellation of Ms Chou’s visa by the delegate, which underpinned the decision in relation to Sebastian, remained in force unless and until set aside by the AAT. Therefore the AAT’s second decision concerning Sebastian should not be quashed if the AAT’s first decision concerning Ms Chou was set aside. This submission is not to be accepted.

[143]    As the appellants contended in their supplementary submissions in reply dated 29 June 2021, from 8 February 2018 (when the AAT affirmed the delegate’s cancellation decision in respect of Ms Chou), the delegate’s decision had no independent continuing operation, nor did the AAT’s order affirming that decision give the delegate’s decision continuing legal operation (see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [70] per Gageler, Keane and Nettle JJ). Contrary to the Minister’s submission, the AAT’s second decision was not “underpinned” by the delegate’s earlier decision to cancel Ms Chou’s visa. The true position is that the AAT’s second decision depended for its validity upon the validity of its first decision (which affirmed the cancellation of Ms Chou’s visa). It necessarily follows that because that first decision was affected by jurisdictional error and is invalid (contrary to the primary judge’s conclusion), the AAT’s second decision is affected by the same error and must be set aside as invalid. Ground 5 is accordingly upheld.

61    The reasoning on this ground in Chou was that the Tribunal’s decision in relation to the son depended on the validity of the decision in relation to his mother. As jurisdictional error existed in the decision relating to the mother, the second decision relating to the son was also affected by that error.

62    As the Minister submitted, there is no factual similarity between Chou and the circumstances in this case. Chou does not address ss 48, 48A, 48B, 415 or 417 of the Migration Act. Unlike in Chou, neither the Delegate’s Decision nor the Tribunal’s Decision in this case are affected by jurisdictional error. Chou says nothing about the circumstances in this case. Moreover, nothing in Chou can go higher that the purported underlying source, being the reference to Plaintiff M174/2016, and for the reasons above, that case does not support the appellant’s contentions.

63    Returning to this case, the Assistant Minister’s exercise of his power under s 417(1) of the Migration Act to grant the appellant a three month visitor visa, which is accepted to be a more favourable decision, was not the exercise of the power in s 415. Indeed, as noted by the Minister, the more favourable decision could not have become the outcome of the review pursuant to s 415 of the Migration Act because the Tribunal conducting a review under Division 4 of Part 7 has no power to grant a visitor visa.

64    As contended by the Minister, the substitution effected under s 417(1) was simply to give a visa where there was none, albeit one of a different kind from that for which the appellant had applied and which could not have been granted by the Tribunal. That did not alter the present position as to whether the appellant could validly apply again for a protection visa. The Assistant Minister’s Decision did not alter history. Even if it substituted the Tribunal’s Decision, it says nothing about the Delegate’s Decision, or the entitlement of the appellant to a protection visa. The Assistant Minister did not set the Delegate’s Decision aside. The exercise of the power in the Assistant Minister’s Decision did nothing to alter the fact that the appellant had previously been refused a protection visa. Rather, the Assistant Minister granted the appellant a different visa under s 417 of the Migration Act, a provision that expressly does not depend upon a person satisfying any prescribed criteria for the grant of a visa.

65    The Delegate’s Decision to refuse the protection visa remained even once the more favourable decision to grant a three month visitor visa had been substituted for the Tribunal’s Decision. For the reasons given above, its legal operation remained. All the s 417 exercise of power did was substitute the Tribunal’s Decision by granting the appellant a visitor visa.

66    As a consequence, the appellant’s second visa application dated 12 October 2017, was invalid.

Conclusion

67    In short, s 48A of the Migration Act prohibits the making of a further protection visa application where one has already been made and refused. That is subject only to s 48B, where the Minister can personally exercise his power to consider another application if it is considered in the public interest to do so. That power was not exercised. The Assistant Minister substituting the Tribunal’s Decision and granting a different visa, a three month visitor visa, pursuant to s 417(1) of the Migration Act, does not mean that the appellant has no longer been refused a protection visa for the purposes of s 48A.

68    Accordingly, the primary judge was correct to dismiss the judicial review application from the Delegate’s Decision as the Delegate was correct to determine that the second protection visa application was invalid.

Associate:

Dated:    12 September 2023