FEDERAL COURT OF AUSTRALIA

JUDICIAL REVIEW of delegate’s decision to reject visa application. Applicant sought delegate’s decision be quashed or set aside on the basis that the delegate was obliged to request additional information referred to but not provided with the application - delegate’s power to obtain further information under the Migration Act 1958 (Cth) distinguished from suggested obligation to actively pursue foreshadowed further information.

Migration Act 1958 (Cth) ss 54, 55, 56, 476.

Tam Anh Bui v Minister for Immigration & Multicultural Affairs (Mansfield J, unreported, 9 April 1998)

Zeljana Velmir v Minister for Immigration & Multicultural Affairs (Emmett J, unreported, 9 July 1998)

MINH CONG TRAN –v– MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

VG 602 OF 1997

MARSHALL J

5 NOVEMBER 1998

MELBOURNE

THE COURT ORDERS THAT:

(1)               The applicant’s notice of motion of 4 November 1998 be dismissed.

(2)               The application be dismissed.

(3)               The applicant pay the respondent’s costs, including reserved costs, if any.

Note:                Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

The applicant, Minh Cong Tran, applied to the Court pursuant to Part 8 of the Migration Act 1958 (Cth) ("the Act") to review a judicially reviewable decision of a delegate of the respondent ("the delegate") refusing to grant to the applicant a Refugee and Humanitarian (Migrant) Class (Class BA) visa ("the visa"). 

On 5 September 1997 solicitors acting for the applicant and his wife wrote to the Principal Migration Officer in the Australian Embassy in Manila, Philippines.  Attached to that letter were several documents which were lodged in support of the application for the visa.  The letter concluded in the following way:

“We request confirmation of the lodgement of this application and any future communications to be sent to both the Applicant and this office.  A comprehensive submission with supporting documentation will be forwarded as soon as possible.

Should there be any problems or queries regarding this application please telephone or facsimile the political section of this office at your earliest convenience.” (Emphasis supplied)

Accompanying the letter was what is known as a Form 842, which is an application for such a visa.  The application disclosed that the applicant was a citizen of Vietnam who left that country by boat in 1989, travelled to the Philippines in that year and has remained in the Philippines as a temporary resident.  The application claimed that the applicant, or any member of his family, had suffered persecution by virtue of political opinion.  It also gave a "Yes" answer to the question:

“Were you ever arrested, detained, imprisoned, interrogated or mistreated (physically or mentally) in your home country?

An identical answer was given to the question:

“Did you ever have your property confiscated or damaged in your home country?”

The form provided a space for details to be given if an affirmative answer was given to those two questions.  In those spaces the words "SEE SUBMISSION" were typed.  Those words were also entered after the reference to "Political opinion" referred to above.

Part of the form gave the following instruction:

“Describe in detail the nature, source and extent of your persecution, discrimination or denial of rights (if applicable).”

In the space provided for details the words "SEE SUBMISSION" were written.  No submission accompanied the Form 842 or the solicitor's letter dated 5 September 1997.  I was informed by counsel for the applicant, Mr Skinner, that his instructing solicitors (the same firm which wrote the letter dated 5 September 1997) had no record on their files of any such submission ever being formulated.

The form constituting the application and the solicitor's letter were received by the delegate on 10 September 1997.  On 23 September 1997 the delegate determined the application adversely to the interests of the applicant.  Critically, the delegate was not satisfied that the applicant was subject to persecution or substantial discrimination amounting to gross violation of human rights in Vietnam.  In the letter advising the applicant of his decision the delegate said:

“If you have additional information not previously provided which you believe could lead to the grant of a visa, you will need to lodge a new application.”

No new application was lodged.  Instead, the applicant's solicitors filed the application currently before the Court on 24 October 1997 seeking judicial review of the delegate's decision.

In his submissions today Mr Skinner sought that the Court quash or set aside the decision of the delegate and remit it to him for further consideration, together with any additional supporting material on which the applicant may wish to rely.  No explanation was given to the Court as to why the applicant had not simply made a fresh application to the delegate without recourse to the Court. Whilst that course seems an obvious solution to the applicant's complaints the Court is nonetheless obliged to consider the submissions of the applicant for the relief sought.

Mr Skinner contended that on receipt of the application without the submission referred to in the application, the delegate was obliged to contact the applicant's solicitors and request the provision of a submission before making the decision.  It was put that such an obligation arose from the terms of s54 of the Act.

Section 54 of the Act provides as follows:

“(1)     The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.

(2)       For the purposes of subsection (1), information is in an application if the information is:

            (a) set out in the application; or

            (b) in a document attached to the application when it is made; or

            (c) given under section 55. 

(3)       Without limiting subsection (1) a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions.”

It was contended by Mr Skinner that when the delegate had regard to all the information in the application, in the context of s54(1) of the Act, he should have requested a copy of the foreshadowed submission.  However, as counsel for the respondent, Mr Murphy submitted that contention is in direct conflict with s55(2) of the Act.  Section 55 of the Act is in the following terms:

“(1)     Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision. 

(2)       Subsection (1) does not mean that the Minister is required to delay a decision because the applicant might give, or has told the Minister that the applicant intends to give further information.”

Mr Skinner also relied on s56 of the Act as imposing an obligation on the delegate to seek the relevant submission referred to in the application.  Section 56 of the Act is in the following terms:

“(1)     In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa.

(2)       Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way.”

Reliance on s56, and also s54 of the Act, was made by Mr Skinner in support of a submission that s4761(a) of the Act provided an avenue for the Court to overturn the delegate's decision. He submitted that the procedures required by the Act to be observed in connection with the making of the decision were not observed.  It was contended that the procedures established by those sections, and in general by Subdivision AB of Division 3 of Part 2 of the Act were not complied with by the delegate.

I have considered but rejected Mr Skinner's submissions on s54 of the Act.  In my view his reliance on s56 of the Act is also misplaced. As Mansfield J said in Tam Anh Bui v Minister for Immigration & Multicultural Affairs, 9 April 1998, (unreported), at 19, the wording of s56 of the Act does not impose any obligation on the respondent rather, “It provides the respondent with power to obtain information.” See also Zeljana Velmir v Minister for Immigration & Multicultural Affairs, 9 July 1998, (unreported) where Emmett J said:

“Section 56 does not require any procedure to be followed.  There is no requirement to seek further information, simply the conferring on the Minister of a discretion to ask for it or get it if he or she wants to. In contrast is the second limb of section 56 which does impose upon the Minister the obligation to have regard to any further information which he or she obtains.”

Subdivision BA of Division 3 of Part 2 of the Act was designed to allow visa applications to be fairly, efficiently and quickly dealt with.  It is common ground that the application, the subject of this proceeding, was efficiently and quickly dealt with.  However, Mr Skinner submitted that it was not fairly dealt with.  I reject that submission.  The covering letter of the applicant's solicitors which accompanied the application promised a submission which was never made.  There was no obligation on the Minister to wait for it.  Indeed, as set out above, s55(2) of the Act makes that clear.  I agree with Mr Murphy's submission that any competent solicitor practising in the migration area should have known that once an application was lodged without supporting documentation, then her or his client would be at risk of having the application rejected by the respondent.

In any event, any suggestion of any unfairness operating against the applicant as a result of the failure of his application for a visa rings hollow in a context where a new application for a visa may be made at any time with whatever accompanying material the applicant wishes to rely upon.  Such is to be contrasted with the "on-shore" applications made to the Refugee Review Tribunal (see s48A of the Act).

Consequently, it is the view of the Court that the application be dismissed as no ground recognised by the Act has been established to justify the setting aside or quashing of the delegate's decision.

The applicant also filed a notice of motion which sought the admission into evidence of additional material which was not before the delegate.  Mr Skinner informed the Court that this notice of motion would only be pressed in the event that the Court was prepared to set aside the decision, the subject of the substantive application.  Consequently, it is unnecessary to deal with the notice of motion on the merits other than to note that it should follow that the notice of motion be formally dismissed having regard to the Court's order in the substantive matter.  As the application, including submissions on the motion, was dealt with in totality before lunch today, no extra cost considerations will arise as a consequence of the motion. 

The order of the Court is as follows:

(1)               The applicant's notice of motion dated 4 November 1998 be dismissed.

(2)               The application be dismissed.

(3)               The applicant pay the respondent's costs, including reserved costs, if any.

Associate:

Dated:              22 December 1998