FEDERAL COURT OF AUSTRALIA

SZVBN v Minister for Immigration and Border Protection [2016] FCA 898

ORDERS

THE COURT ORDERS THAT:

1.    Time is extended for the applicants to file and serve a notice of appeal in the form of the draft notice of appeal dated 14 April 2016.

2.    Within seven days hereof the applicants are to file and serve a notice of appeal in the form of the draft notice of appeal dated 14 April 2016.

3.    Costs of the interlocutory application are reserved, including the respondent’s right to seek costs thrown away by the applicants’ non-compliance with directions.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

Introduction

1    The applicants seek an extension of time to file a notice of appeal in respect of the judgment and orders of the Federal Circuit Court of Australia (FCCA) dated 11 December 2015. The appeal period lapsed approximately three months ago.

2    In support of the application for time to be extended, the third applicant affirmed an affidavit dated 14 April 2016 (to which was attached an earlier affidavit dated 24 April 2013 which had been affirmed by the third applicant in earlier proceedings in the High Court). The third applicant described herself as the “principal applicant” in the proceedings. She is the mother of the first and second applicants, who are her daughter and son respectively. In explaining the delay in appealing the FCCA’s decision, the third applicant said that she was aware of the time period for an appeal but that she did not lodge an appeal within that time because she had received threatening telephone calls from her former husband, whom she believed had been forced to depart Australia and return to Korea during 2014. She also said that she had spoken with her former husband’s relatives in Korea who told her that he could and would return to Australia under a different name and easily locate her. She said that she remains very scared of him and was concerned that she would have to return to Korea.

3    The third applicant said that a second reason for not appealing within time was that she “gave in to despair” because of the domestic violence she had experienced.

4    The third applicant also gave evidence as to her state of mind at the time surrounding her interview on 26 March 2012 in relation to the family’s previous Protection visa application, and the consequential review proceedings of the decision to reject the application. It is to be noted that this evidence relates to a point in time which is several years before the FCCA handed down its decision on 11 December 2015 and in relation to which the applicants now seek an extension of time and leave to appeal.

5    The third applicant said that her feelings of hopelessness and despair worsened when she decided not to appeal the FCCA decision. She then said that, with her knowledge, her migration agent filed what she described as “a Ministerial Appeal”. The third applicant said that she now understood that this “appeal” was regarded as a “Repeat Ministerial Request”, in circumstances where her former solicitor had previously sought the Minister’s intervention after the first Protection visa applications were refused. She said that she had understood that her previous solicitor was lodging an application for review to the Refugee Review Tribunal in relation to that earlier decision but had instead sought Ministerial intervention.

6    The third applicant said that if she had been aware during the appeal period relating to the FCCA’s decision that the “Ministerial Review” would be regarded as “useless”, she would have not pursued that course and would instead have appealed the FCCA’s decision.

7    The third applicant was not cross-examined.

8    The draft notice of appeal contains the following single proposed ground of appeal:

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 a family unit of a relative.

9    The application for an extension of time was filed on behalf of the applicants by a solicitor.

10    On 15 April 2016 directions were made for the applicants’ lawyer to file documents in relation to the application within ten business days and also for the applicants to file and serve a written outline of submissions no later than ten business days before the hearing date. Neither of these directions was complied with.

11    The applicants are all citizens of the Republic of Korea (South Korea). The daughter and son were born on 20 June 1998 and 2 October 2002 respectively. It is evident that the daughter is now aged more than 18, however the son is not. In circumstances where his mother, who has legal capacity and describes herself as the principal applicant in the proceedings, is involved and the son may properly be described as a secondary applicant, I consider that r 9.61 of the Federal Court Rules 2011 (Cth) does not apply.

12    For convenience, I will hereafter refer to the parties as the mother, daughter and son respectively.

The FCCA proceeding

13    The primary judge’s reasons for judgment are reported as SZVBN v Minister for Immigration [2015] FCCA 2977 (SZVBN). The applicants were represented by both counsel and solicitors below. The proceeding below related to a separate and preliminary question which was in the following terms:

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] FCAFC 47; 221 FCR 523 (Kim) 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 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?

14    The primary judge answered this preliminary question “No” and dismissed the applicants’ application for a judicial review.

15    The applicants first arrived in Australia on 7 October 2003 and on 17 November 2011 the mother applied for a Protection visa. The daughter and son were included in that application but they did not make their own claims for protection.

16    On 18 April 2012, the Minister’s delegate refused to grant a Protection visa to the mother (consequently the daughter and son were also unsuccessful).

17    On 12 August 2014, all three applicants made further applications for Protection visas. The son and the mother were included in the daughter’s application. The mother did not raise any claims of her own but the son did so, albeit his claims largely mirrored those of his sister.

18    A Departmental officer rejected the second series of applications on the basis that, because Protection visas had been refused on 18 April 2012, s 48A of the Migration Act applied so as to prevent a person who has not left Australia since they were refused a Protection visa from making a subsequent Protection visa application.

19    The judicial review application in the FCCA related to the Departmental officer’s determination that s 48A applied.

20    The primary judge noted that the officer’s determination dated 15 August 2014 was not a decision of a Ministerial delegate but rather was an expression of an opinion by a Departmental officer as to the operation of s 48A.

21    There was no issue that the FCCA had jurisdiction to deal with the application. The sole ground of judicial review was that the determination made on 15 August 2014 involved a jurisdictional error by failing to exercise jurisdiction because it was incorrect to apply s 48A in circumstances where the daughter and son’s Protection visa application was made on 12 August 2014 and prior to the commencement day of the Amendment Act on 25 September 2014.

22    Section 48A of the Migration Act, as it stood at the time of the officer’s determination on 15 August 2014 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.

(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.

(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.

23    Section 48B of the Migration Act, to which s 48A was subject, provided at the relevant time:

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.

24    The primary judge noted that the applicants’ contention was that s 48A had to be understood by reference to a similar provision in s 48 concerning applications for visas other than Protection visas. As at 15 August 2014, s 48 provided:

(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)    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.

25    Section 48 was in those same terms when it was considered by the Full Court in Kim. The Full Court held that, for a visa application to be valid under s 48, the non-citizen must have had knowledge of the prior application which was refused.

26    The primary judge noted that the applicants’ case was that Kim is equally applicable to s 48A because it was a “companion” provision in that it was directed to applications for Protection visas but was otherwise directed to the same circumstances as in s 48. The applicants’ submission was that, where there was appropriate affidavit evidence that the non-citizen lacked knowledge of the prior application for a Protection visa, s 48A did not apply.

27    The primary judge noted that, shortly after Kim was handed down, amendments were made to both ss 48 and 48A. Relevantly s 48(1AA) was inserted by item 3 of Sch 1 to the Amendment Act. It provided:

(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.

28    Item 6(3) of Sch 1 to the Amendment Act provided:

(3)    The amendment made by item 3 of this Schedule applies in relation to:

(a)    a decision to refuse to grant a protection visa to a non-citizen that is made before the day this item commences, if the further application for a protection visa mentioned in subsection 48A(1AA) of the Migration Act 1958 (as inserted by that item) is made by or on behalf of the non-citizen on or after that day; or

(b)    a decision to refuse to grant a protection visa to a non-citizen that is made on or after the day this item commences, regardless of when the application for the visa to which the decision relates was made.

29    Item 3 commenced the day after the Amendment Act received the Royal Assent. The Royal Assent was given on 24 September 2014, with the result that item 3 commenced on 25 September 2014.

30    Item 6(3)(a) is the relevant application provision, as the prior application of which the daughter and son were allegedly unaware was made on 17 November 2011 and there was a decision to refuse to grant the Protection visa on 18 April 2012. However, the balance of item 6(3)(a) is not satisfied, as the further application was made on 12 August 2014, which is still before the commencement day of 25 September 2014.

31    It was common ground below that the daughter and son were unaffected by s 48(1AA) and the amendments had no application to their circumstances.

32    The primary judge held that the Full Court’s decision in Kim concerning the operation of s 48 of the Migration Act did not similarly qualify the operation of s 48A as it stood at the relevant time.

33    The primary judge’s reasoning may be summarised as follows:

(a)    although ss 48 and 48A were directed at the same mischief, namely multiple visa applications, they served somewhat different purposes and had different legislative histories. Section 48 is a qualified permission applying generally with a focus on the applicant for the relevant visa, whereas s 48A is a general prohibition which is limited to Protection visa applications and is ameliorated by the Minister’s discretion under s 48B;

(b)    the amendments had the effect of reversing the Full Court’s decisions in Dranichnikov v Minister for Immigration [2001] FCA 769; 109 FCR 397 and Soondur v Minister for Immigration [2002] FCAFC 324; 122 FCR 578, with the consequence that the inclusion of a person in an application, as a member of a family unit of the applicant, involves the “making” of a Protection visa application;

(c)    the Amendment Act dealt specifically with the Full Court’s decision in SZGIZ v Minister for Immigration [2013] FCAFC 71; 212 FCR 235 by reinforcing the application of s 48A to all of the criteria for the grant of a Protection visa, including the family group criteria. The Parliamentary intention underlying the amendments was to ensure inter alia that persons who were refused a visa as members of another person’s family unit and who did not raise their own protection claim at the time, would be prevented from making a further Protection visa application relying on their own protection claims;

(d)    the amendment to s 48A precluded the person who has been included in a Protection visa application as a member of a family unit of an applicant from making his or her own Protection visa application subsequently and there was no room to apply Kim; and

(e)    the position was the same whether or not the Minister’s guardianship obligations under the Immigration (Guardianship of Children) Act 1946 (Cth) had been engaged.

34    For these reasons, the primary judge concluded that Kim had no application to s 48A(1) as it stood at the relevant time in circumstances where a child makes an application for a Protection visa and previously had been included, without his or her knowledge, in an application for a Protection visa as a member of a family unit of a relative.

The proceedings in this Court

35    The proposed single ground of appeal is set out in [8] above, As noted above, the applicants were in default of the directions made on 15 April 2016.

Applicants’ submissions summarised

36    When the matter was called for hearing, Mr Jones of counsel appeared for the applicants. The broad effect of his oral submissions may be summarised as follows:

(a)    the Full Court’s reasoning in Kim in respect of the companion provision to s 48A is applicable and the primary judge erred in distinguishing Kim because there are no relevant textual or contextual reasons for doing so;

(b)    significant injustice is caused by the primary judge’s construction of s 48A, as is exemplified by the circumstances here; and

(c)    the Minister’s power under s 48 to “lift the bar” is an inadequate answer to such injustice.

37    Mr Jones confirmed that, if the appeal proceeded and was successful, the applicants would seek an opportunity to file evidence in the remitted proceedings to establish the requisite lack of knowledge on the part of the first and second applicants.

Minister’s submissions summarised

38    The Minister opposed an extension of time on the grounds that:

(a)    there was a three months’ delay in commencing the proceedings;

(b)    no satisfactory explanation has been provided for the delay; and

(c)    the proposed single ground of appeal lacks sufficient merit to warrant the grant of an extension of time.

39    In support of the third submission, which is also relevant to the question of leave to appeal, the Minister submitted that:

(a)    in the form in which it stood on 12 August 2014, s 48A(1) of the Migration Act operated in a way that, if a non-citizen previously made an unsuccessful valid application for a Protection visa, whether as a primary or secondary applicant, he or she will have “made” an application for a Protection visa in the requisite sense and s 48A(1) would apply to prevent the making of a subsequent application for a Protection visa by that person, whether as a primary or secondary applicant; and

(b)    Kim does not apply to s 48A.

40    The Minister contended that the following matters supported the primary judge’s answer to the separate and preliminary question:

(a)    if a visa application is “valid”, it will have been “made” (citing inter alia SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91; 168 FCR 487 at [4], [7], [11]-[12] and [14] per Black CJ and Allsop J);

(b)    the Migration Act does not draw any distinction between a visa application made “by” a non-citizen, as opposed to one made on his or her behalf by another person. An application made in the name of a child by his or her parent is a valid application which is to be treated as having been made by the child because the legislative regime treats the child as a visa applicant in his or her own right;

(c)    the reference in s 48A(1)(a) to a non-citizen having “made” an application for a Protection visa means no more than that the non-citizen was a person by whom an earlier, valid application is taken to have been made. There is no distinction drawn in s 48A between applications made in person and those made by agents;

(d)    there is nothing in the text or context of s 48A(1)(a) which requires that a non-citizen child to have had knowledge, actual or constructive, of a previous Protection visa application having been made on their behalf. Because s 48A(1)(a) is both textually and contextually different from s 48(1)(b)(i), Kim does not apply to the proper construction and application of s 48A; and

(e)    on the evidence below, each of the three applicants made a protection visa application on 17 November 2011 because, for the purposes of s 48A(1)(a) their applications were valid and the mother had the authority to act on behalf of her children and she signed the application form on their behalf.

Disposition of the interlocutory application

41    The principles guiding the discretion to extend time to appeal are well settled. They include such matters as the length of the delay, the adequacy of the explanation for the delay, any prejudice to the respondent and the strength of the proposed appeal. Mr Jones also relied upon Mortimer J’s judgment in MZZGC v Minister for Immigration and Border Protection [2015] FCA 842 (MZZGC) at [17]:

I do not consider the absence of an acceptable explanation for the delay is sufficient reason in the particular circumstances of this case to dismiss the application for an extension of time, and I now explain why I have reached that view. In summary, it is because I consider it is arguable the Independent Protection Assessor’s decision is affected by jurisdictional error.

42    Mr Jones submitted that, in the light of that approach, it was not determinative that he conceded that the applicants had failed to explain the delay in bringing these proceedings as long as he could demonstrate that the ground of appeal was reasonably arguable in the particular circumstances here.

43    The Minister did not contend that he would suffer any relevant prejudice if time was extended, but relied upon the matters set out in [38] above in opposing the application.

44    In my view, applying Mortimer J’s approach in MZZGC, which I consider is relevant to the particular circumstances here, the issue whether or not time should be extended substantially turns on the strength of the proposed single ground of appeal, to which I now turn.

45    I do not accept the Minister’s submission that the proposed ground of appeal has “little prospect of success”. Important and complex issues of statutory construction are involved, which will require careful consideration of the text and context of several relevant provisions of the Migration Act as in force at the relevant time, including ss 45, 46, 48, 48A, 48B and 98. Careful consideration will also need to be given to the Full Court’s reasoning in Kim in respect of s 48 of the Migration Act and whether the primary judge was correct to find that that reasoning does not apply to s 48A in the form that it was at the relevant time. Mr Kaplan, who appeared for the Minister, informed the Court that the Minister had sought special leave to appeal Kim, but the application was withdrawn (presumably because of the Amendment Act). Despite the amendments to ss 48 and 48A, the issues presented by the proposed appeal are also likely to affect other persons. There is an issue of general principle concerning the extent to which the prohibition imposed by s 48A, as in force at the relevant time, applies to individuals who have no knowledge of an earlier Protection visa application having been made unsuccessfully and in which they were included.

46    On an interlocutory application such as this it is inappropriate for me to say anything more than that, in my view, the applicants’ construction is reasonably arguable and cannot summarily be rejected.

Conclusion

47    For these reasons, time should be extended and leave granted to the applicants to appeal in the terms of the single ground proposed in their draft notice of appeal dated 14 April 2016. I direct that a notice of appeal in that form be filed and served within seven days. Costs of the interlocutory application should be reserved and abide the outcome of the appeal (noting that the Minister may wish to argue that the applicants should bear the costs thrown away by non-compliance with the Court’s directions).

48    In my view, it is also appropriate that the appeal be heard by a Full Court constituted by three Justices of the Court and I will make a recommendation to the Chief Justice accordingly. Of course, it will be a matter for the Chief Justice to determine whether or not to accept that recommendation. The Minister should also advise my associate as soon as is practicable whether he proposes to challenge the correctness of Kim as this may affect the Court’s composition.

49    The parties will be notified of the directions which will be made in relation to preparation for, and the conduct of, the appeal.

Associate:

Dated:    4 August 2016