Federal Court. The Appellants made invalid protection visa applications and then validly applied for visas subclass 785. Is the question of whether the Appellants abandoned a claim for the purpose of the valid visa applications a matter of fact? Did they abandon that claim? Was MZYQZ v Minister for Immigration and Citizenship [2012] FCA 948 analogous to the facts of the present case?
The Appellants arrived in Australia as "irregular maritime arrivals" and then applied for protection visas. Those applications were invalid (Invalid Protection Applications), by reason of s 46A of the Migration Act 1958 (Cth). In summary, those applications contained a claim that the First Appellant was "concerned about retribution for being apathetic about Islam” (Religious Apathy Claim).
The Department subsequently wrote to the Appellants, inviting them to apply for a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa. They then applied for a subclass 785 visa, but without repeating the Religious Apathy Claim or making a reference to it.
A delegate of the Minister then refuse to grant them the visas and the matter was automatically referred to the Immigration Assessment Authority (IAA) under Part 7AA of the Act. The IAA wrote as follows in its reasons for affirming the delegate's decision:
I note also that the applicants lodged a Protection visa application on 24 October 2013 which was deemed [i]nvalid under s.46A (the invalid 2013 PV application). Both the applicant and the applicant’s wife raised claims in this invalid application, and these included matters additional to the matters raised in the 2015 TPV application, such as: that the applicant no longer practises Shia Islam and his children are not interested in following Islam, the involvement of the applicant’s wife and son in green movement demonstrations, the applicant’s support for the green movement and opposition to the Iranian government, his wife and daughter being harassed for transgressing the dress code and having suffered other discrimination as women, and his daughter’s [sic] being not allowed to attend international swimming competitions because of the dress code. These claims have not been pursued by the applicant [i]n his 2015 TPV application, they were not considered in the delegate’s decision, and they have not been raised in the 2016 IAA submission. I have therefore not considered these claims any further.
(Emphasis added by the FCA)
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Is the question of whether the Appellants abandoned the Religious Apathy Claim for the purpose of the valid visa applications a matter of fact?
Question 2: Did the Appellants abandon the Religious Apathy Claim for the purpose of the valid visa applications?
Question 3: Was MZYQZ v Minister for Immigration and Citizenship [2012] FCA 948 analogous to the facts of the present case?
The FCA answered those questions as follows: