FEDERAL COURT OF AUSTRALIA

SZVJV v Minister for Immigration and Border Protection [2020] FCA 22

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellants pay the Respondent’s costs as taxed or agreed.

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

REASONS FOR JUDGMENT

PERRAM J:

1    How many times may one apply for a protection visa whilst present in Australia? Section 48A of the Migration Act 1958 (Cth) (‘the Act’) suggests that the answer to this question is ‘once’ and that subsequent applications cannot be made. The Appellants are persons to whom s 48A appears to apply. By their present appeal, however, they principally seek to argue that s 48A does not apply to them. For reasons which follow that attempt fails. The other grounds advanced by them also fail. The appeal will be dismissed with costs.

2    The First Appellant is the wife of the Second Appellant. Both are citizens of China. I shall refer to them without any disrespect as the Wife and the Husband. They arrived in Australia at separate times. The Husband arrived in 2002 on a temporary business visa. When that visa expired he applied, on 20 June 2002, for a protection visa which was refused some weeks later. Unsuccessful judicial review proceedings in relation to that refusal were finalised on 2 September 2005.

3    The Wife entered Australia in 2007 on a student guardian visa. Subsequently, on 20 April 2009, she applied for a protection visa which was also refused shortly afterwards. Court proceedings about that refusal finally concluded on 6 August 2010 in this Court.

4    In 2014 the Appellants lodged a fresh application for a protection visa on the basis that they were entitled to complimentary protection under the then newly introduced provisions giving effect to the Commonwealth’s non-refoulement obligations (s 36(2)(aa)). This application was refused on its merits on 20 June 2014. Litigation before the federal courts ended on 6 September 2017 when the High Court dismissed the Wife’s special leave application: SZVJU v Minister for Immigration and Border Protection [2017] HCASL 198.

5    Having failed a cumulative three times in applications for protection visas, the Appellants then applied again for a protection visa on 11 October 2017 (being just over a month after the High Court refused to grant the Wife special leave). The primary application for the protection visa was made by the Husband with the Wife making her application as part of his family unit. By the time of this application, s 48A(1C) had come into force.

6    A delegate of the Respondent (‘the Minister’) found that this application was invalid on 25 October 2017 on the basis that the Appellants did not meet the requirements of s 48A of the Act because they were in Australia when they submitted the application in circumstances where previous applications for protection visas by them had been refused. The relevant parts of s 48A are subss(1) and (1C):

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.

7    The Federal Circuit Court dismissed an application for judicial review of the delegate’s decision on 29 July 2019: SZVJV v Minister for Immigration and Border Protection [2019] FCCA 2003. It is the appeal from that decision which is now before this Court.

8    The Appellants’ argument is that their earlier applications for protection visas were invalid and of no effect in law. Consequently, for the purposes of s 48A, they had not in fact made earlier applications and the provision did not render their most recent application invalid. The earlier applications were said to have been invalid because they were on the incorrect form.

9    There were five steps to the argument. First, to be valid, the earlier applications had to be made in accordance with the statutorily mandated form. Secondly, the statutorily mandated form (known as a Form 866) was that Form as it existed on 20 October 1999 when it was first prescribed and not any later versions of that Form. Thirdly, the content of the Form had been altered by the Commonwealth subsequent to 20 October 1999, but the alterations were not legally competent. Fourthly, the earlier applications had been made on one of these later versions of Form 866. Finally, the Appellants’ earlier applications were invalid as a result of not having been made in the statutorily mandated form.

10    I accept the first step in the argument. An application for a visa is only valid if it satisfies the prescribed criteria: s 46(2)(b). One of the prescribed criteria is that the applicant should have completed an ‘approved form’. The prescribed form is Form 866: Migration Regulations 1994 (Cth) Sch 1, Item 1401.

11    I do not accept the second step. I do accept that Form 866 first appeared in Sch 1, Item 1401 on 20 October 1999. But I do not accept that Form 866 could not thereafter be altered and that its form was forever fixed as at that date. The Full Court held in SZMOX v Minister for Immigration and Border Protection [2018] FCAFC 121; 265 FCR 477 (‘SZMOX’) that Form 866 could be varied by the Minister after that date and that Item 1401 did not forever fix its content. I am bound by that conclusion with which, were it relevant (and it is not), I agree. The Appellants’ argument on appeal therefore fails at this second step.

12    I would have accepted the third step to the extent that the Form was altered at points subsequent to 1999 but I would not have accepted the corollary that this was submitted to entail. There did not appear to be any evidence as to the fourth step but the appeal was conducted on the basis that it was correct and I will proceed on the same assumption. However, because I do not accept the second step I do not accept the logic of the final step. The argument as a whole therefore fails. This was also the conclusion of the learned primary judge who was, with respect, correct.

13    The Wife pursued a variant of the argument based on the fact that her current application was made as a member of the Husband’s family unit. Regardless of the basis on which her application was made it was an application for a protection visa and s 48A applied to it. In any event, s 48A(1C) is explicit in making clear that s 48A applies ‘regardless … of … (a) the grounds on which the application would be made or the criteria which the non-citizen would claim to satisfy’.

14    These arguments were comprised in the Appellants’ first two grounds of appeal which I reject. The balance of the notice of appeal was as follows:

3.    Burley J. of the Federal Court of Australia dismissed a decision of this Court raising relevantly identical issues – namely BVJ16 v [Minister for Immigration and Border Protection [2017] FCCA 178].

4.    The applicant would like to be fairly assessed by the Department of Home affairs due to the juridical error occurred in the application form.

  5.    The applicant has the right to response to the department of invalid application.

6.    The application has strong claim against this visa application that should be heard.

15    These do not disclose grounds of appeal and do not call for resolution. In their written submissions the Appellants also made four further points. First, the Wife said she had her own claims for protection and that these should have been considered. But the short fact is that the application she made to the Minister was on the basis that she was a member of her Husband’s family unit. The delegate cannot be criticised for dealing with the application the Wife in fact made. In any event, even if she had made her own claims for protection, s 48A would still have applied. Therefore, even if jurisdictional error were established in relation to the delegate’s failure to deal with her substantive claims for protection, the result would inevitably be the same. This argument fails.

16    Secondly, it was submitted that the primary judge had denied the Appellants procedural fairness because his Honour had ‘failed to give clearly reasonable and intelligible reasoning’ and had disregarded critical information. As to the former, I have read his Honour’s reasons which apply the Full Court’s reasoning in SZMOX in a fashion which is orthodox. They are entirely comprehensible. As to the latter, the critical information was not identified in this Court. I therefore reject this second argument.

17    Thirdly, it was said that the learned primary judge had erred in following the decisions of other judges. There is nothing in this. The learned primary judge was legally obliged to follow SZMOX unless it could be distinguished. It cannot be distinguished. Whilst I agree with the Appellants’ submission that the names of the parties in this case and in SZMOX are different and the case references are also different, this is not a relevantly distinguishing feature. The learned primary judge also referred to the fact that the argument which had been made to him had been made many times to the Federal Circuit Court and the Federal Court and had on each occasion been rejected. In the course of doing that he named two members of the Bar who appeared to be at the forefront of putting the argument. Neither appeared in the case before his Honour although an adjournment had been unsuccessfully sought to allow one of them to appear. I do not think that the fact the argument rejected in SZMOX had been pursued by these counsel has any relevance to any viable ground of appeal. At best the references to the argument and its enthusiastic sponsors display a certain perhaps understandable weariness for the point on the part of the primary judge. This however is not a ground of appeal.

18    Fourthly, it was said that the Appellants had been in Australia for 10 years, had become part of the community and were honest and hard-working people. I am prepared to accept this for the sake of argument and I certainly have no reason to doubt it. However, it is not a criterion for the grant of a protection visa that the Appellants should be part of the community or that they be honest and hard-working people. There is a negative criterion for the grant of a visa that they should pass the character test: s 501(1). However, there has never been any suggestion that they had failed that criteria. Even if I were satisfied of this matter, however, it would not matter because their application would still be invalid by virtue of s 48A. There is the additional problem that my views about their character are irrelevant and the views which matter are those of the delegate. Accordingly, I reject this argument.

19    Three days before the appeal, the Wife applied for an adjournment of the hearing on the basis that she was suffering from anxiety which would adversely affect her ability to conduct the appeal in person. Medical evidence was provided to my chambers which supported this view. I refused the adjournment for two reasons. First, the medical evidence did not go so far as to say that she could not conduct the appeal. Secondly, it was apparent from that evidence that her anxiety is being caused by the actual existence of the appeal. It does not seem to me that any adjournment would resolve the anxiety because it would still be present at the adjourned hearing. There was a suggestion by her psychiatrist that this problem might be overcome if legal representation was obtained. I do not think that is a realistic option. I take into account that whatever fascination the first two grounds of appeal may at one time have held for the migration cognoscenti, they have been fully extinguished by the Full Court’s decision in SZMOX which has brought down the curtain on this point. I also take into account the fact that the Appellants have been involved in quite a few court proceedings now and are not at all unfamiliar with the need if possible to obtain lawyers: see, eg, SZVJU v Minister for Immigration and Border Protection [2017] FCA 489; SZVJU v Minister for Immigration and Border Protection [2016] FCCA 3310; SZOAZ v Minister for Immigration and Citizenship [2010] FCA 816 (in which the Wife was represented); SZOAZ v Minister for Immigration and Citizenship [2010] FMCA 160 (in which the Wife was represented); SZBTK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1263. It is also useful to note that an adjournment to obtain legal representation was sought and refused in the Court below at [13]-[14]. The Appellants have been aware during both proceedings that legal representation might benefit them and have indeed indicated their desire for it. The fact that it has not so far been obtained is indicative of the fact that it is unlikely to be obtained in the future.

20    When the appeal was called on, the Wife did not appear but the Husband did. He proffered another medical certificate dated 20 January 2020 (that is, the date of the hearing). In it, the doctor certified that the Wife was ‘receiving medical treatment for headache [and] major depressive disorder’ on 20 January 2020 and that ‘she will be unfit to attend the Court hearing’. Again, this does not really address the failure to seek to obtain lawyers somewhat earlier. In addition, by the time of this application it was apparent that the appeal had no prospects of success because of SZMOX. I therefore refused the Wife’s second adjournment application.

21    The appeal will be dismissed with costs.

Associate:

Dated:    21 January 2020