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Federal Court of Australia |
Last Updated: 29 January 2001
Dranichnikov v Minister for Immigration & Multicultural Affairs [2001] FCA 18
MIGRATION - application for a protection visa - prohibition on further applications whilst applicant within the migration zone - effect of applicant's inclusion within husband's earlier application - second application validly rejected.
ADMINISTRATIVE LAW - judicial review - application for review of a decision - decision to refuse application for a protection visa - legality of refusal - whether decision infected by bad faith or an improper purpose.
Migration Act 1958 (Cth) ss 5, 29(1), 31, 36(1), 36(2), 46(1)(d), 47(1), 47(3), 48A(1), 48A (2), 48B, 49
Migration Regulations 1994 (Cth) Regulations 2.01, 2.02, 2.03, 2.07, Schedule 1 pt 4, item 1401(3), Schedule 2 subclass 866
Migration Amendment Act (No.6) 1995 (Cth) s 14
Migration Reform Act 1992 (Cth) s 39
Migration Legislation Amendment Act 1994 (Cth) Schedule 2
Hajj Imrana Munkayilar v Minister for Immigration and Multicultural Affairs (1997) 1333 FCA (21 October 1997)
Mijoljevic v Minister for Immigration and Multicultural Affairs (1999) FCA 834 (25 June 1999)
OLGA DRANICHNIKOV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND MS RYNEETE GAULT in her capacity as an officer of the Department of Immigration and Multicultural Affairs AND MR KEVIN DUFFY in his capacity as an officer of the Department of Immigration and Multicultural Affairs
Q 89 of 2000
DOWSETT J
29 JANUARY 2001
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA |
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QUEENSLAND DISTRICT REGISTRY |
1. The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
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QUEENSLAND DISTRICT REGISTRY |
JUDGE: |
DOWSETT J |
DATE: |
29 JANUARY 2001 |
PLACE: |
BRISBANE |
1 The applicant was born on 8 January 1963 in the former Union of Soviet Socialist Republics ("USSR"). She is of Russian extraction. Her husband is Serguei Dranichnikov ("Mr Dranichnikov"). He was also born in the USSR and is of similar extraction. They have a daughter, Maria, born on 30 January 1988 in Vladivostok ("Maria"). They arrived in Australia on 8 January 1997, apparently as tourists. On 2 April 1997 an application for protection visas was lodged (the "first application"). Mr Dranichnikov was the "principal" applicant, by which I mean that he was the applicant identified in Pt C of the application. The present applicant and Maria each completed Pt D. I will discuss the significance of these parts of the application form at a later stage. The first application was, in any event, unsuccessful. Mr Dranichnikov was so advised by letter dated 21 May 1997. In April or May of this year, the applicant inquired as to her current entitlement to apply for a protection visa and on or about 11 August 2000, she made such an application (the "current application"). On 24 August a departmental officer advised the applicant in writing that as she had "previously sought protection in Australia as a refugee" she could not make a further application for a protection visa whilst in the migration zone, and that she was therefore "not an applicant for a protection visa". The reference to the applicant's having previously sought protection was to the application of 2 April 1997.
2 The applicant now seeks review of the decision "to refuse to accept the Application for a Protection Visa lodged with the Department of Immigration and Multicultural Affairs on 11th August 2000" and to review "the decision and `affirmative' misconduct" of the second and third respondents in not accepting the relevant fee payable upon lodgment of the application. The first respondent does not rely upon non-payment of the fee as affecting the validity of the current application. Rejection of the payment was the consequence of the alleged invalidity rather than its cause.
3 In order to understand the basis of the application for review it is necessary to understand the statutory regime pursuant to which the current problem arises. This is to be found in ss 46, 47, 48A and 49B of the Migration Act 1958 (Cth) (the "Act"). Section 46 prescribes the circumstances in which an application for a visa will be "valid". It may be assumed for present purposes that the current application was valid save to the extent that it was affected by the provisions of par 46(1)(d), which provides that an application for a visa will be valid if:
it is not prevented by section 48A (protection visa), ... .
4 Section 47 provides that the Minister is to consider a valid application for a visa (subs 47(1)) and is not to consider an application which is not valid (subs 47(3)). Section 48A provides:
(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.
(2) In this section
application for a protection visa includes:
(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.
5 Section 48B authorizes the Minister to permit a further application for a protection visa in certain circumstances. It is not presently necessary to consider that section as the applicant has not sought relief pursuant to it.
6 The only relevant question is whether or not, for the purposes of s 48A, the applicant has previously, whilst in the migration zone, made an application for a protection visa which has been refused. Section 5 defines the term "migration zone" to mean, in effect, Australia. The first respondent submits that the prohibition contained in s 48A attaches to the applicant because she was an applicant for a protection visa pursuant to the first application. For this reason, the current application was not processed. The applicant submits that her involvement in the first application was not such as to enliven the s 48A prohibition. It is therefore necessary to examine the provisions relating to protection visas and the earlier application.
7 Section 29(1) of the Act authorizes the Minister to grant a visa to a non-citizen to permit him or her to travel to, and enter Australia and/or to remain within Australia. The visa may be for a fixed period or indefinite in duration. Section 31 provides:
(1) There are to be prescribed classes of visas.(2) As well as the prescribed classes, there are the classes provided for by sections 32, 33, 34, 35, 36, 37, 37A and 38.
(3) The regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 32, 36, 37 or 37A but not by section 33, 34, 35 or 38).
(4) The regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both.
(5) A visa is a visa of a particular class if this Act or the regulations specify that it is a visa of that class.
8 Sub-sections 36(1) and (2) provide:
(1) There is a class of visas to be known as protection visas.(2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
9 The "Refugees Convention" is the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The "Refugees Protocol" is the Protocol relating to the Status of Refugees done at New York on 31 January 1967.
10 Section 31 permits prescription by regulation of the criteria for issuing visas of specified classes, including protection visas. Section 46 authorizes regulations relating to the requirements to be met in order that an application for a visa be valid. This distinction is maintained in the regulations. Regulation 2.01 prescribes classes of visa, while reg 2.02 creates certain sub-classes. Regulation 2.03 and Sch 2 prescribe criteria for issuing various types of visas. The presently relevant part of the schedule is sub-class 866 which prescribes the criteria for a protection visa as follows:
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; or
(b) Claims to be a member of the same family unit as a person who:
(i) Has made specific claims under the refugees convention; and
(ii) Is an applicant for a protection (Class XA) visa.
11 The applicant and Maria were, in 1997, and are currently members of the same family unit as Mr Dranichnikov. (See reg 1.12.)
12 Regulation 2.07 and Sch 1 prescribe requirements concerning applications for visas. Part 4 of Sch 1 deals with protection visas which are described as "Protection (Class XA)". Relevantly, item 1401(3) provides that:
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.
13 Section 36 of the Act prescribes as a criterion for the issue of a protection visa that the applicant be a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention and Protocol. Sub-class 866 of Sch 2 prescribes two situations in which such a visa may be issued. In either situation, the applicant must claim to be a person to whom Australia has relevant obligations. Although these obligations are not expressly defined in the Act, they must arise out of the Refugees Convention and Protocol. As well as making such a claim, the applicant must either make "specific claims" under the Refugees Convention and Protocol or claim to be a member of the same family unit as a person who has made such claims, in which case the latter person must also be an applicant for a protection visa. In Hajj Imrana Munkayilar v Minister for Immigration and Multicultural Affairs (1997) 1333 FCA (21 October 1997) Beaumont J said at page 9:
It is equally clear, in my view, upon a reading of cl 866 as a whole, that its provisions may be satisfied in two alternative ways. Either the applicant makes a specific claim, in effect as a "free-standing" claim under cl 866.211(a) or, pursuant to cl 866.22, the applicant proceeds in a derivative fashion, as it were, by claiming to be a member of the same family unit as a person who is making a specific claim under the Refugees Convention and who is also an applicant for a protection (class AZ) visa [now class XA].In the second kind of case, the derivative claim may succeed, provided that the member of the family unit has applied for a protection visa (see cl 866.211(b)) and, subsequently, that visa has been granted (see cl 866.222(b)). In the present case, the applicant elected to make a claim of the former "free-standing" kind, rather than that of the latter "derivative" kind. It is, therefore, not open to the applicant to suggest that the Tribunal should have treated his application as being one made of the derivative kind.
14 In Mijoljevic v Minister for Immigration and Multicultural Affairs (1999) FCA 834 (25 June 1999), Branson J at pars 16 and 17 adopted a similar approach. I accept for present purposes that, speaking broadly, an applicant for a protection visa must be either a person who claims to be a refugee pursuant to the Refugees Convention and Protocol or a person who is a member of the same family unit as such a person who is currently also seeking a protection visa.
15 The validity of the current application depends solely upon whether or not it is "prevented by section 48A" as contemplated by par 46(1)(d). As I understand it, it is accepted that the applicant is a non-citizen and that she has been in Australia since early 1997. She is therefore not able to make a valid application for a protection visa if, she has already made such an application since arriving in Australia, and it has been refused as prescribed in par 48A(1)(a). There is no doubt that the current application is for a protection visa. The only question is whether or not the applicant has previously made an application for a protection visa which has been refused.
16 The relevant application form is in four parts, identified as A, B, C, and D. That there is a Part A is a matter of inference. Only Parts B, C and D are before me. Part B is headed "Application for a Protection Visa (866)" and "Persons included in this application and family composition". It provides for the insertion of the names of up to six persons as applicants so that each is allotted an "applicant number". The personal history of each of the applicants so named must be provided. There are also questions as to other members of the family unit in Australia who are not included in the application and as to family members not in Australia. As I have pointed out, the regulations contemplate a "combined" application. In Part B of the first application, applicant 1 was Mr Dranichnikov, applicant 2 was the applicant and applicant 3 was Maria. Part B requires that each applicant indicate whether or not he or she had his or her own claim to refugee status. All three applicants answered "yes" and signed the document, the present applicant signing on her own behalf and on behalf of Maria.
17 Part C is headed "Application for an applicant who wishes to submit their own claims to be a refugee" and "Application for a Protection Visa (866)". In the first application, this part was completed in the name of Mr Dranichnikov. Attached, apparently in answer to various questions in Part C, were details of life in Russia, including references to the prevalence of crime and bribery of police, details of Mr Dranichnikov's work history and a claim that he was "someone who belongs to the social group of entrepreneurs". Mr Dranichnikov claimed that somebody had attempted to kill him and that the police had displayed little interest in the matter. He claimed that his only possible "crime" was that, "I spoke openly and directly against unlawfulness of security authorities". He said that his family had subsequently lived in "constant fear". He said that they agreed that his wife should go back to study law with the intention that she would "fight for the justice from inside", but they have now decided not to go back to Russia because it is dangerous. He claimed that both he and his wife had strong senses of justice and often spoke against lawlessness. He said that whilst in Australia he realized that the attempt on his life was due to such outspokenness and that they were concerned at the possibility that their daughter might be kidnapped. As I have said, this application was unsuccessful. An appeal by Mr Dranichnikov to the Full Court was also unsuccessful.
18 Part D of the application is headed "Application for a member of the family unit". and "Application for a Protection Visa (866)". It also bears the words:
This part is for a member of a family unit who does NOT have their own claims to be a refugee, but is included in this application.If you DO have your own claims to be a refugee, complete a Part C instead.
19 The applicant completed Part D and signed it, notwithstanding her indication in Part B that she had a claim of her own. Part D was also completed and signed on behalf of Maria. The applicant suggested in argument that she had been misled by departmental officers or by a migration agent into mistakenly completing Part D and that she had not understood that in so doing, she would prejudice any subsequent application based on her own claim to refugee status. The evidence is less than persuasive on these matters but in any event, they are not presently relevant. They may be relevant to the exercise of the discretion conferred by s 48B, but that is not a matter with which I am presently concerned. Clearly, the first application contained an application by Mr Dranichnikov for a protection visa upon the basis that he was a refugee and applications by the applicant and Maria, as members of the same family unit, for protection visas on the basis of such membership. In those circumstances subss 46(1) and 48A(1) render the current application invalid.
20 It is worth recording at this point that although the applicant requested the assistance of an interpreter for the purposes of the hearing before me, she has demonstrated a substantial and quite sophisticated understanding of, and capacity to use the English language, particularly in connection with legal proceedings. She may have acquired much of that skill since 1997.
21 I should add a brief comment concerning subs 48A(2) which was inserted by s 14 of the Migration Amendment Act (No. 6) 1995. It might be faintly arguable that the sub-section exhaustively defines the expression "application for a protection visa" for the purposes of identifying the kinds of previous application which bar further applications pursuant to subs 48(1) and that such definition does not include an application for a protection visa made after 1 September 1994. This would be a curious result given the otherwise clear meaning of the expression "application for a protection visa" in subs 48(1) and the obvious purpose of the sub-section.
22 Sub-section s 48A(2) can only be properly understood in its historical context. Since 1958 there have been numerous statutory regimes regulating the bases upon which persons claiming refugee status may enter and remain in Australia. At one time such a person required an entry permit which could be granted if the Minister had determined that he or she was a refugee within the meaning of the Refugees Convention and Protocol. (See the Migration Act 1958 as amended, up to and including the Migration Amendment Act (No.2) 1980 (Cth).) At a later stage, such a person required an entry permit, the grant of which was conditional upon the person having both a visa and the benefit of such a determination by the Minister. (See the Migration Act 1958 as amended, up to and including the Migration Legislation Amendment Act 1989 (Cth).) From late 1994, a refugee required a "protection visa" in order to enter or remain in Australia, a criterion for the grant of which was that the applicant was a person to whom Australia owed protection obligations under the Refugees Convention and Protocol. (See the Migration Act 1958 (Cth) as amended up to and including the Migration Reform Act 1992 (Cth) as amended.) It seems that subs 48(2) was intended to prevent fresh applications for protection visas by persons who had applied under the Act in its various earlier forms for entry permits, visas or determinations as to refugee status. It was not intended to narrow the ambit of operation of subs 48(1), but rather to extend it. This view is reinforced by the wording of s 39 of the Migration Reform Act 1992 (Cth) which is referred to in par 48A(2)(c) and to which counsel for the respondent referred in argument. That section originally provided:
The application for a determination by the Minister that a person is a refugee within the meaning of the Principal Act [the Migration Act 1958] as in force immediately before 1 November 1993 that was made, and not finally determined (within the meaning of the Principal Act), before that date is taken, on that date, to be an application for a protection visa (within the meaning of the Principal Act as in force on that date).
23 Prior to its coming into effect, the section was amended by the Migration Legislation Amendment Act 1994 (Cth) to read:
If:(a) an application for:
(i) a determination by the Minister that a person is a refugee within the meaning of the Principal Act as in force immediately before 1 September 1994; or
(ii) an entry permit (within the meaning of the Principal Act as in force immediately before that date), a criterion of which is that the Minister has made such a determination in relation to the person, or in relation to a member of the family unit of the person (within the meaning of the regulations);
was made before that date; and
(b) before that date, the application has not been finally determined (within the meaning of the Principal Act);
then, on and after that date, the provisions of the Principal Act (including provisions relating to review of decisions) apply as if the application was an application for a protection visa (within the meaning of the Principal Act as in force on that date).
24 In argument the applicant pressed two further grounds in support of her application. I need only deal with them briefly. The first was that the refusal to accept and process the current application was made in bad faith or for an improper purpose. There is no evidence that the decision was so infected. In any case, it clear that no question of bad faith or improper purpose can arise for present purposes. The decision is based upon, and compelled by the law. There is no discretionary element in it. The other ground pressed by the applicant was that there was no evidence or other material sufficient to justify the making of the decision. There is nothing in this point. The only facts relevant to the decision are not in dispute. It is also unnecessary to deal separately with the claims concerning the second and third respondents.
25 The application must be dismissed. I will hear submissions as to costs.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. |
Associate:
Dated: 29 January 2001
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The Applicant appeared in person. |
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Interpreter for the Applicant: |
Ms T. Downs |
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Solicitor for the Respondent: |
Mr M. Belcher (Australian Government Solicitor) |
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Date of Hearing: |
8 December 2000; 11 December 2000 |
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Date of Judgment: |
29 January 2001 |
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