LML6001 – MIGRATION LAW Online Tutoring

Dear Sir

We refer to our discussion wherein you raised certain queries before us pertaining to the decision of Federal Court of Australia in a decision reported as SZVBN v Minister for Immigration and Border Protection [2017] FCAFC 90, and its implications on the immigration law operating in the Australia. Through this document, we intend to clarify your query and explain in simple language the legal implications arising out of the aforesaid decision and the principles of statutory interpretation that were at play and contributed to the judges understanding of the case and the final decision in respect thereof.

The central issue in this case was with respect to the proper construction and interpretation of section 48A and section 46(1)(d) of the Migration Act 1958 (Cth) [hereinafter “the Act”] so as to render invalid a second protection visa application by a person who lacked capacity, due to being minor or child, in an application made prior to 25 September 2014. The court answered the question in negative and allowed the appeal.

The brief facts of the case are that a mother applied for protection visa along with her 13-year-old daughter and a nine-year-old son. The application was rejected by the Minister’s delegate. Three years later, the daughter who was now 16 years old applied for second protection visa application along with her mother and brother. In the first instance of appeal before Federal Circuit Court of Australia (FCCA) the question was answered considering the decision of the full bench of judges in Minister for Immigration and Border Protection v Kim (2014)[1] wherein it was concluded that the knowledge of a visa application was not required for rejection of application under section 48A(1) of the Act.[2]

Section 48A was key question in the case which prevents repeat applications from the protection visa applicants once they have been rejected. However, a visa application is rejected only if it is considered valid under the other section 46(1)(d) of the Act. Besides, section 48B of thee Act also empowered the Minister to determine that in certain cases the restrictions under section 48A did not apply and allowed the applicants to lodge second application for protection visa within the time specified by the Minister.[3]

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The judge Griffiths relying on the judgment in case of Soondur[4] stated that in case of children of young age, it needs to be determined whether the first application for protection visa was made by the first or second applicants; and where the first application involved someone who lacked capacity to enter into application, that application will not be regarded as having made by that person. Accordingly, that person should be allowed to apply again for protection visa.

At paragraph 141 of the decision, Judge Griffith also summarized the factors that should be considered in determining whether the minor or child’s informed consent was present in lodging the first protection visa application. This includes, inter alia, the capacity and understanding of the first and second applicants at the time of filing of the first visa application, the minor person’s capacity to understand the effects and implications of lodging their application with the Authority, their capacity to understand the Values Statement that accompanies the visa application and the applicant’s declaration in items 28 and 30 of Part D, the circumstances in which they signed or their signs were obtained on these documents, and finally the fact that whether or not any of them deny of knowledge on their part to be included in the first visa application.

As a result of this reasoning of the court, a minor person or any other person whose informed consent was not obtained at the time of filing of protection visa application in the first instant, would be able to re-apply the protection visa upon attaining age of majority or upon attaining capacity in any other form. Accordingly, a child or a person who suffered from mental impairment at the time of filing of first protection visa application would not be barred by the restriction under section 48A to re-apply to the Minister for reconsideration after the incapacity is removed.

The court resorted to the rule of literal interpretation when determining the proper construction of the stature and also resorted to the doctrine of precedent in determining the outcome of the appeal. The judges resorted to the helpful discussion already done in cases of Marion[5] and Woolley[6] concerning the legal authority of the parents as guardians to bind their children, and the legal capacity of children to undertake such decisions. These principles are stated as follows in paragraph 132 of the decision:

  • (i) Parents have the power under common law to make decisions on behalf of their child and it will bind the child only if s/he did not have the competence or knowledge to make the decision by him/herself.
  • (ii) Parents can also act on behalf of the child where the child lacks legal capacity or authority to so act.
  • As child continues to achieve “sufficient intellectual and emotional maturity”, the parents’ legal authority diminishes and the child’s capacity and legal competence increases until s/he is able to make an informed decision without external input.

Similarly, to answer the question whether an unassisted minor person can make a valid protection visa application, the judges resorted to the case of Jaffari[7] wherein at paragraph 37 Justice French has held as follows:

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

Hence, in case of Jaffari the court concluded that there was nothing on record that suggested that the minor applicant did not understand the nature and consequences of the protection visa application and he was properly assisted by a competent and knowledgeable migration agent.

Also, the judges relied on the decision in case of Al Raied v Minister for Immigration and Multicultural Affairs (2001)[8] wherein the court considered the question whether a child could apply for a protection visa. Therein it was noted at paragraph 36 that since section 45 referred to a “non-citizen” without excluding any specific categories of persons, any person who is not an Australian citizen whether or not a minor was eligible to apply.

Using the practice problem model to answer the question of law presented before them, the judges also held in the instant case that the primary judge in the first instance of appeal erred in interpreting the correct construction of section 48A of the Act. The reasons they felt this was the case are briefly summarized as follows:

  • (i) Plain reading of the express provision of section 48A transpires that it is directed to the person who “has made” the first protection visa application, and accordingly the questions about his/her competency and capacity should be resolved first to consider the second visa application as relevant or barred by the restriction contained in section 48A. The fact that the provision is written in the active voice further reinforces this proposition since the focus is on the person rather than the requirement to make an application.
  • (ii) The latter part of section 48A also operates to prevent a person from lodging a second application under certain circumstances.
  • The amendments created by the Migration Legislation Amendment Act (No 6) 2001 (Cth) under section 48A does not in any way intend to address the question at hand or deal with the situation wherein the minor person or a person without capacity was barred by section 48A to make an application for the protection visa.
  • (iv) Before determination that a person has made a repeat application, it is essential to determine the age of the applicant and his/her capacity to make protection visa application in the first instance.[9]
  • (v) Even after several amendments to section 48A following the decision in case of Soondur, there is no implication either in the amendments or the accompanying extrinsic material to suggest that reversal of the principles drawn in case of Soondur are intended to be reversed. Hence the principles laid therein should be adhered to. Hence applying the retrospectivity model, there appeared to be no contrary intention in the new law; accordingly, the old law applies on the cases affected and where presumption has arisen.
  • (vi) The reasonings provided in the case of Kim and relief in the first instance of appeal by FCCA cannot be applied in the instant case because the Kim’s case was directed to an altogether different statutory provision i.e., section 48 which is different in wordings and construction from section 48A, the subject matter of this appeal.

In view of the above, the repeat applications by minor or persons without capacity has been legally strengthened after this decision and made possible under this interpretation of section 48A. The decision appears to be based on sound reasoning on the wider context as well as cancellation of application without consideration or barring a particular kind of persons without giving them opportunity to re-apply appears to be against the principles of natural justice and fair play. It also disables them from being heard which is also against the principle of audi alteram partem (right of being heard).[10]

We hope the above comments answer your queries. Should you have any questions, please feel free to discuss with us.

Kindest regards.

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Bibliography

Al Raied v Minister for Immigration and Multicultural Affairs [2001] FCA 313.

Jaffari v Minister for Immigration and Multicultural Affairs (No 2) [2001] FCA 1516.

John M. Kelly, Audi Alterant Partem, The American Journal of Jurisprudence, Volume 9, Issue 1, 1964, Pages 103–110, https://doi.org/10.1093/ajj/9.1.103

Migration Act 1958 (Cth).

Migration Agents Regulations 1998.

Migration Legislation Amendment Act (No 6) 2001 (Cth).

Minister for Immigration and Border Protection v Kim [2014] FCAFC 47.

Re Woolley; Ex parte Applicants M276/2003 [2004] HCA 49; 225 CLR 1.

Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) [1992] HCA 15; 175 CLR 218.

Soondur v Minister for Immigration and Multicultural Affairs [2002] FCAFC 324.

SZVBN & Ors v Minister for Immigration and Border Protection [2015] FCCA 2977.

[1] Minister for Immigration and Border Protection v Kim [2014] FCAFC 47.

[2] SZVBN & Ors v Minister for Immigration and Border Protection [2015] FCCA 2977.

[3] Section 48B of the Migration Act 1958 (Cth) – Minister may determine that section 48A does not apply to non‑citizen.

[4] Soondur v Minister for Immigration and Multicultural Affairs [2002] FCAFC 324.

[5] Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) [1992] HCA 15; 175 CLR 218.

[6] Re Woolley; Ex parte Applicants M276/2003 [2004] HCA 49; 225 CLR 1.

[7] Jaffari v Minister for Immigration and Multicultural Affairs (No 2) [2001] FCA 1516.

[8] Al Raied v Minister for Immigration and Multicultural Affairs [2001] FCA 313.

[9] Soondur v Minister for Immigration and Multicultural Affairs [2002] FCAFC 324.

[10] John M. Kelly, Audi Alterant Partem, The American Journal of Jurisprudence, Volume 9, Issue 1, 1964, Pages 103–110, https://doi.org/10.1093/ajj/9.1.103

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