FEDERAL COURT OF AUSTRALIA

BYE15 v Minister for Immigration and Border Protection [2016] FCA 263

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    This is an appeal from the decision of the Federal Circuit Court dismissing an application pursuant to s 39B of the Judiciary Act 1903 (Cth) and Pt 8 Div 2 of the Migration Act 1958 (Cth) for judicial review of the decision of a delegate of the Minister made on 3 September 2015 to reject an application for a protection (Class XA) visa that the appellant had lodged with the Sydney office of the Department of Immigration and Border Protection on the same day. The appellant was then in immigration detention.

Background

2    The delegate stated in his letter of 3 September 2015 that the reason for the rejection of the application was that the appellant had been refused his earlier request for a protection visa by a delegate on 19 April 2010, and that s 48A of the Migration Act precluded the making of a subsequent visa protection application except in circumstances not presently relevant.

3    Indeed, the appellant had applied for a review of the 2010 delegate’s decision by the Refugee Review Tribunal which, on 2 July 2010, affirmed the earlier delegate’s decision not to grant the appellant a protection (Class XA) visa.

4    The essential argument which the appellant raised below when he was, unlike today, represented by a lawyer, was that the 2010 application did not make specific claims under the Refugees Convention and thus failed to satisfy the criterion prescribed in cl 866.211(a) of Sch 2 of the Migration Regulations 1994 (Cth) namely:

866.21    Criteria to be satisfied at time of application

866.211    The applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and:

(a)    makes specific claims under the Refugees Convention;

5    The trial judge succinctly identified the factual background on which I have drawn below in these reasons. The appellant claimed to be a citizen of Lebanon who feared harm from people in that country who had asked him to bring steroids into Australia. He had departed legally from Lebanon on a passport issued in his own name with a valid visitor’s visa. When he arrived by plane on 15 November 2009, he was detained and arrested at Sydney Airport for carrying illegal drugs and subsequently convicted and fined.

6    On 19 January 2010 the appellant lodged his earlier protection visa application. He completed that application, including part C of form 866C (Form 866C), by answering the specific questions posed in it as to his reasons for claiming protection. The form contained a direction under the heading “Your reasons for claiming protection” that:

The reasons you give in this section should be your reasons only. … You should answer all the following questions in your own words. You should tell us below everything about why you think you are owed protection. (emphasis in original)

7    Form 866C did not require the appellant to state specifically what, if any, claim he or she was making under the Refugees Convention, although Form 866 stated that that definition appeared on page 1 of part A of the form (which was not in the papers before her Honour or me). Form 866C then set out relevantly with large blank boxes underneath each question the following questions, namely:

42     Why did you leave that country? (being the one to which he did not seek to go back, namely Lebanon);

43    What do you fear may happen to you if you go back to that country?;

44     Who do you think may harm/mistreat you if you go back?;

45    Why do you think this will happen to you if you go back?;

46    Do you think the authorities of that country can and will protect you if you go back? If not, why not?

8    The appellant completed those details and referred to an attached statement, in which he gave greater detail to his background and circumstances that I have briefly summarised. In effect, he claimed that he would not be able to obtain State protection in Lebanon from the alleged criminals who had duped him into carrying illegal substances into Australia. He claimed that those people would find and kill him if he were to return to his home country.

9    The 2010 delegate was not satisfied that the appellant was an innocent participant in a drug smuggling operation. The delegate found that the appellant had attempted to create a Refugees Convention nexus in his protection visa application because, as a regular visitor to Australia previously, he was aware that, as a result of his conviction, it would be unlikely he would be granted a further visa to travel to Australia. The delegate found that the essential and significant reason for the appellant’s claims to fear persecution were matters of a private nature between him and the claimed unknown persons, who had asked him to convey the steroids to Australia, and not for a Refugees Convention reason. Therefore, the delegate rejected the application.

10    The Tribunal found that the appellant had made a valid application for review of the delegate’s decision under s 412 of the Act. Having heard evidence from the appellant, it found that he had not been truthful in that evidence and that the harm that he claimed to fear was not as a result of any Refugees Convention-related harm and did not amount to persecution for a Convention reason. The Tribunal found that there was no real chance that he would face persecution for a Convention reason were he to return to Lebanon then, in 2010, or in the reasonably foreseeable future.

The legislative schemes

11    In order to understand the nature of the appellant’s challenge before her Honour, which is essentially the same as he makes here on appeal, it is necessary to set out the legislative scheme as that applied at the time of the original application on 19 January 2010 and the relevant provisions applicable on 3 September 2015.

12    Critically, in both 2010 and 2015 the Minister had to consider a valid application for a visa and was prohibited from considering any application that was not a valid application (s 47(1) and (3)). The conditions prescribed by s 46 for an application for a visa to be a valid application, relevantly were in both 2010 and 2015:

46    Valid visa application

(1)    Subject to subsections (1A), (2) and (2A), 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 (emphasis added)

13    As at 19 January 2010, reg 2.07 provided that:

2.07    Application for visa – general

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

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

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

(c)    other matters relating to the application.

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

(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. (emphasis added)

14    For the purposes of reg 2.07, the matters prescribed for a protection (Class XA) visa of Pt 4 of Sch 1in item 1401, were:

Part 4    Protection, Refugee and Humanitarian visas

1401.    Protection (Class XA)

(1)    Form:    866.

(2)    Visa application charge:

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

(i)    In the case of each applicant who is in immigration detention and has not been immigration cleared: Nil

(ii)    In any other case: $30

(b)    Second instalment (payable before grant of visa): 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)

15    In addition, as at 19 January 2010, s 36 relevantly provided:

36    Protection visas

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

Note:     See also Subdivision AL.

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

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

16    In March 2012, the complementary protection criterion, that could apply to a wider class of situations than those covered by the Refugees Convention, was added to the Act as s 36(2)(aa) in the following terms:

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

17    As at 3 September 2015, s 46(1)(d) of the Act provided that a visa application was valid unless it was prevented by another provision of the Act or law of the Commonwealth and s 48A(1) and (1C) provided:

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.

(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. (emphasis added)

18    Relevantly, s 48B gave the Minister personally the power, if the Minister considered that it was in the public interest, to determine that s 48A did not apply to prevent a non-citizen from making a further application for a protection visa.

The appellant’s argument and its fate before the trial judge

19    The critical question in this case is the effect of section 48A(1). The appellant’s lawyer had argued before her Honour that s 48A(1C) of the Act did not apply to prevent his client from making an application for complementary protection under s 36(2)(aa) because of the decision of the Full Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235, even though s 48A(1C) had been inserted into the Act with effect from 28 May 2014 to negate the decision of the Full Court in that case.

20    Her Honour rejected that argument and held that s 48A(1C) precluded the appellant’s ability to rely on s 36(2)(aa) and SZGIZ 212 FCR 235. Subsequently in AZABF v Minister for Immigration and Border Protection [2015] FCAFC 174 at [25]-[27] North ACJ, Collier and Flick JJ also held that the terms of s 48A(1C), when read together with ss 36(2)(aa), and acted as a bar to the lodgment of a second application for a protection visa by a person whose 2009 application for a protection visa had been made solely on the basis of s 36(2)(a) (namely on the ground that the person claimed protection as a refugee within the meaning of the Refugees Convention).

21    The appellant’s lawyer argued before the trial judge that cl 866.211(a) to Sch 2 of the Regulations identified a criterion of validity for a protection visa application, namely, that the applicant had to make a specific claim under the Refugees Convention for the application to be valid.

22    Her Honour rejected that argument and held that cl 866.211(a) did not prescribe any matter for the purposes of reg 2.07(3) but rather, provided a criterion that the Minister or his delegate had to consider and be satisfied of if a protection (Class XA) visa were to be granted in the exercise of the Minister’s power under s 65 of the Act. Her Honour referred to BAL v Minister for Immigration and Multicultural Affairs (2002) 189 ALR 566. There, French, Lindgren and Stone JJ considered how reg 2.07(1) and (3) applied with respect to the requirements in Form 866. Their Honours held that clause 866.211was a criterion relevant to the concept of “completion” of Form 866 as prescribed by reg 2.07(3). They noted that Form 866 was not prescribed by the Act or Regulations and that substantial compliance with its requirements sufficed, having regard to the provisions of s 25C of the Acts Interpretation Act 1901 (Cth) that provided:

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

23    They held that there had been substantial compliance with Form 866 where the applicant had completed it by setting out only the “bare bones” of his claims. While those claims had been fleshed out by the applicant later, in ways that had not been implied in the sparse statement he had elected to include in his Form 866 application for the visa, that did not prevent his application from having substantially complied with the requirement of the Act and reg 2.07(3) that he complete Form 866. They said (189 ALR at 547[42]):

It was sufficient that he claimed to have a well-founded fear of persecution by the Turkish Police by reason of the three convention grounds he identified.

24    Her Honour rejected the appellant’s argument to her that because no Convention-based claim of persecution had been identified in his completed Form 866, it was not a valid application. Her Honour held that merely because, ultimately, the appellant’s claims had been found not to satisfy any criteria in the Refugees Convention that did not have the effect of invalidating his application for a protection visa. She found that the appellant had completed the Form 866 application and it disclosed the claims on the basis of which he had sought protection. She held that it was sufficient if the Form 866 was substantially completed. That would enliven the obligation of the Minister (or his delegate) to consider whether the claims made in it satisfied the relevant criteria on which a protection visa could be granted. She found that the appellant had completed the Form 866 responsively to the questions that it asked and that, whether the appellant’s claims ultimately satisfied the criteria in cl 866.211(a), was a matter for subsequent determination by the decision-maker and did not go to the validity of the visa application itself.

25    Accordingly, her Honour found that the Form 866 application lodged on 19 January 2010 was a valid application and that the delegate’s rejection of the 2015 application was not affected by jurisdictional error.

Consideration

26    I am of opinion that her Honour was correct for the reasons that she gave based, as they were, on the evidence of the contents of the Form 866 on which the 2010 application was made. The appellant completed Form 866C in accordance with the directions on it, namely, he answered questions 42 to 46 inclusive responsively in the boxes below those questions and in his statement attached to the application. There he identified why he had left Lebanon, why he feared what would happen to him if he returned there, what harm or mistreatment he thought he would be exposed to if he returned, why he thought that was so and what he thought about the ability of the authorities in Lebanon, and their willingness, to protect him if he went back.

27    Importantly, Form 866C did not require an applicant to specify any claims under the Refugees Convention. Indeed, a person can make a valid claim for a protection visa by making a substantial, clearly articulated argument that relies upon established facts that must be considered, even though the claim itself does not expressly identify a Convention ground: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ with whom Hayne J agreed at 408 [95]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at 17-22 [55]-[68] per Black CJ, French and Selway JJ.

28    It is not necessary, in the present circumstances, to analyse the nature of the claims that the appellant made in his 2010 Form 866C application for the purposes of determining whether a decision-maker, such as the 2010 delegate or the Tribunal, could or should have been satisfied that any of those claims gave rise to an entitlement to a protection (Class XA) visa at that time. That is because the appellant completed Form 866C in accordance with the directions in it, and his application otherwise satisfied the criteria prescribed for a valid application in s 46(1)(a) and (b) and reg 2.07.

29    It follows that the appellant’s 2010 application was a valid application for the purposes of the Act. Accordingly, s 48A(1) precluded the appellant from making the 2015 application where, as here, the Minister had not made a determination in the public interest under s 48B that such an application could be made.

Conclusion

30    For these reasons, which are essentially those given by the trial judge, I am of opinion the appeal must be dismissed with costs.

Associate:

Dated:    16 March 2016