FEDERAL COURT OF AUSTRALIA

Kundu v Minister for Immigration & Multicultural Affairs [2000] FCA 560

IMMIGRATION - application for protection visa - application for visa invalid - Minister's delegate refused to grant visa - applicant applied to Refugee Review Tribunal for review of delegate's decision - Tribunal affirmed decision under review - applicant had supplied to Tribunal the information omitted from his original application - whether this overcame the originally invalid application - powers of Minister and Tribunal.

Migration Act 1958 (Cth) ss 47, 65, 69, 415

Phanouvong v Minister for Immigration and Multicultural Affairs [1999] FCA 1489, not followed

Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435 (FC), referred to

Li Wen Han v Minister for Immigration and Multicultural Affairs [2000] FCA 421, followed

PRABIR KUNDU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1239 OF 1999

LINDGREN J

3 MAY 2000

SYDNEY

THE COURT ORDERS THAT:

1.                  The applicant have leave to file and serve an amended application relying on the grounds described in paras (b) and (c) of subs 476(1) of the Migration Act 1958 (Cth).

2.                  The proceeding be stood over to 9.30 am on Monday 8 May 2000 for the making of orders based on an amended application to be filed.

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

REASONS FOR JUDGMENT

Introduction

1                     This is a case involving an invalid application for a protection visa.  Other such cases are Phanouvong v Minister for Immigration and Multicultural Affairs [1999] FCA 1489 (Finn J), Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435 (FC) (“A’s case”) and Li Wen Han v Minister for Immigration and Multicultural Affairs [2000] FCA 421 (Heerey J).  The applicant (“Mr Kundu”) supplied the information which had been omitted from his form of application for the visa to the Refugee Review Tribunal (“RRT”), that is, after the delegate of the respondent (“the Delegate” and “the Minister” respectively) had refused to grant him the visa and prior to the hearing by the RRT of his application for review of that decision.

Procedural background

2                     Mr Kundu arrived in Australia on 1 June 1998.  On 14 July 1998 he applied, through Leitch Hasson Dent, Solicitors and Migration Agents, for a protection visa (visa sub‑class 866).  On 14 August 1998 the Delegate refused to grant him the visa.  On 16 September 1998 Mr Kundu lodged with the RRT an application bearing date 9 September 1998 for review of that decision.  On 27 August 1999, Continental Migration Services wrote to the RRT advising that that firm acted for Mr Kundu and enclosing a statutory declaration by him of the same date.  The RRT conducted a hearing on 31 August.  As noted above, on 30 September it affirmed the Delegate’s decision.  On 27 October, Mr Kundu filed his application to this Court for review of the RRT’s decision.

3                     I need not refer to the grounds described in Mr Kundu’s application as filed.  On the hearing on 31 March, Mr Kundu, who was not represented, handed up in Court a two page submission which asserted that his original application for the protection visa had not been valid and referring to A’s case.  This matter had not previously been raised.  I invited counsel for the Minister to make written submissions in relation to the point and he did so on 4 April.  It seemed to me in the interests of the administration of justice that Mr Kundu should be referred under O 80 sub r 4(1) of the Federal Court Rules for legal assistance in order that written submissions might be made on his behalf as to the consequences for the present application of the invalidity of the original application for the protection visa.  After the legal representatives of the Minister were contacted, I referred Mr Kundu to the Registrar accordingly.

4                     In the result, counsel has made written submissions on Mr Kundu’s behalf and the Minister has made supplementary written submissions on the Minister’s behalf, in each case directed to the issue of law raised.  I wish to record that I have been assisted by the submissions made by both counsel and by their cooperation.

Reasoning

5                     It is not in dispute that Mr Kundu’s application for the protection visa was not valid.  In answer to each of the following questions on Form 866, he referred to a submission to be provided by him on a later date:

“–        Why did you leave that country?

  –        What do you fear may happen to you if you go back to that country?

  –        Who do you think may harm/mistreat you if you go back?

  –        Why do you think they will harm/mistreat you if you go back?

  –      Do you think the authorities of that country can and will protect you if you go back?  If not, why not?”

6                     Contrary to what he said he would do, Mr Kundu did not provide any further material to the Delegate.  But his statutory declaration dated 27 August 1999 supplied to the RRT answered in substance, though not in form, the five questions set out above.

7                     It is common ground that

·        the Delegate’s decision was made without power because it was based on an invalid application;

·        the RRT had power to review the invalid decision.

For the former proposition, it is sufficient to refer to A’s caseat paras [20] – [42] (Merkel J) and [118] (Finkelstein J).  Section 25C of the Acts Interpretation Act 1901 (Cth) does not preclude this result because, as in A’s case, there was not substantial compliance with Form 866.  Accordingly, the Delegate had no power to decide to refuse to grant the visa: A’s case at paras [27], [29] and [52] (Merkel J), [120], [121] (Finkelstein J).  In support of a proposition that nonetheless the invalid decision of the Delegate refusing to grant the visa was an “RRT‑reviewable decision”, reference may be made to Li Wen Han, above, at paras [39], [40].

8                     The question for decision in this case concerns the effect of the supply, not to the Delegate, but to the RRT, of the information, the omission of which in the original application for the visa itself had rendered that application invalid.  In Phanouvong, Finn J held that the supply to the RRT at the hearing of material previously not supplied to the Minister’s delegate had the effect that the RRT had before it valid applications for visas (by members of a family) and (at [25]):

“…it was open to the Tribunal to exercise all of the powers and discretions conferred by the Act on the delegate in relation to those now valid applications: s 415(1).”

9                     On the other hand, in Li Wen Han, Heerey J did not follow Finn J in Phanouvong in the present respect.  Heerey J said (at [47] – [52]):

“47      … A’s case turns on the critical jurisdictional importance of the lodgment, at the time of application, of a protection visa application in Form 866 containing the required details of the Convention claims.  Although it conducts a rehearing de novo and exercises all the powers and discretions that are conferred by the Act on the person who made the RRT-reviewable decision (s 415(1)), the RRT is a reviewing body.  It is plainly not intended to have, as it were, a first instance jurisdiction. Applications for a protection visa must be made to, considered by and decided upon by the Minister: ss 29, 46, 47 and 65.

48        At first blush, ss 55 and 56 strike the reader as somewhat otiose.  [Section 65 provides that until the Minister has decided whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information to which the Minister must have regard.  Section 56 provides that in considering an application for a visa the Minister may get any information he or she considers relevant and must consider any such information obtained.] When a person seeks some form of government licence or benefit, it must very often happen that after the initial application is lodged the applicant will wish to provide further information to the decision-maker. And the decision-maker may often wish to seek further information from the applicant. In the particular case of applications for visas, why did those drafting the Act think it necessary to go to the trouble of spelling out explicit provisions for what might be regarded as mundane and often inevitable steps in any administrative decision-making process?

49        The answer I think is to be found in the special importance which this legislative scheme attaches to the initial application. When lodged, the completed form must contain all the information required. In the case of a protection visa application for example, the completed form must set out the Convention claims. Otherwise there is simply not an application at all. The detailed process laid down by the Act and Regulations has not validly commenced. In that setting the legislative drafters might understandably have turned their minds to the possibility of an argument that in the absence of some specific provision the whole of the applicant's case had to be included in the application form when lodged. So, consistent with the policy of meticulously spelling out every step in the process and thus avoiding argument and uncertainty, the scheme says in effect that applicants must, at the time of lodging the application, put their case in the way the form requires, but they are able to add to it.

50        It seems unlikely that Parliament intended that, notwithstanding the critical importance of the initial application form in the legislative scheme, ss 54 and 55 were to have the effect that the nullity of an invalid application form can be fixed up by the subsequent supply of information, even after the Minister’s decision. [Section 54 provides that the Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all the information in the application and that for this purpose information is “in” an application if it is (a) set out in the application or (b) in a document attached to the application when it is made, or (c) given under s 55.]

51        There is in my opinion no power in the Minister to treat a non-complying "application" as remedied by some subsequent document. No such power is conferred by the Act on the person who makes the RRT-reviewable decision. Therefore there is no such power for the RRT to exercise: s 415(1).

52        The further amended application did not in terms rely on the ground specified in s 476(1)(b). That would seem to be the most appropriate ground. However the ground in s 476(1)(c) is also applicable and the applicants are entitled to succeed.”

10                  Section 415, including subs (1) relied on by Finn J in Phanouvong, is as follows:

“(1)     The Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.

(2)               The Tribunal may:

(a)               affirm the decision; or

(b)               vary the decision; or

(c)                if the decision relates to a prescribed matter – remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or

(d)               set the decision aside and substitute a new decision.

(3)               If the Tribunal:

(a)               varies the decision; or

(b)               sets aside the decision and substitutes a new decision;

            the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.

(4)       To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.”

11                  It may be pointed out that subs (4) omits any reference to affirming the RRT-reviewable decision, but clearly the RRT could not, by affirming such a decision, “make a decision that is not authorised by the Act or the regulations” either.

12                  Although in form the RRT affirmed the Delegate’s decision, its decision was in substance the primary decision to grant the visa on what had become, only a few days before the RRT hearing, ex hypothesi a valid application to the RRT for a visa.

13                  The legislation provides for the Minister, not the RRT, to give primary consideration to applications for visas.  Section 47 is as follows:

“(1)     The Minister is to consider a valid application for a visa.

(2)               The requirement to consider an application for a visa continues until:

(a)               the application is withdrawn; or

(b)               the Minister grants or refuses to grant the visa; or

(c)                the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).

(3)               To avoid doubt, the Minister is not to consider an application that is not a valid application.

(4)       To avoid doubt, a decision by the Minister that an application that is not valid and cannot be considered is not a decision to refuse to grant the visa.”

14                  If, contrary to my view, Mr Kundu first made a valid application for a visa when his statutory declaration was forwarded to the RRT on 27 August 1999, this section required the Minister to consider that application, and to continue to do so until, relevantly, Mr Kundu withdrew the application or the Minister granted or refused to grant the visa.

15                  In this case, the Minister failed to comply with s 47(3)’s requirement that he not consider Mr Kundu’s application for a visa.  Because that application was invalid, the obligation imposed on the Minister by s 65, according to whether the Minister was or was not satisfied as to the matters specified in that section, “to grant” or “to refuse to grant” the visa, did not arise.  By the operation of subs 69(1), the Delegate’s decision to refuse to grant the visa, made in non-compliance with s 47(3), was nonetheless “a valid decision”, albeit “the wrong one, and might be set aside if reviewed”.  Subsection 69(1) is as follows:

“Non-compliance by the Minister with Subdivision AA or AB in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed.”

16                  Section 47 falls within Subdivision AA (s 65 does not fall within either Subdivision AA or Subdivision AB).  If Mr Kundu had not applied to the RRT, the Delegate’s decision to refuse to grant him the protection visa would have remained valid, though wrong, and its wrongness may have gone unrecognised.

17                  Since neither of the alternative obligations to grant or to refuse to grant a visa referred to in s 65 could arise because the Minister was not in a position first to consider a valid application for the visa, the only decision the Minister could properly have taken was a decision that the application was invalid and could not be considered: cf s 47(4).

18                  The Minister relies on s 415(1) (set out above) as empowering the RRT, in effect, to grant or to refuse to grant the visa.  But that subsection endows the RRT only with the powers and discretions conferred by the Act on the original decision-maker, that is, the Delegate.  Section 43 (set out earlier) makes it clear that the Delegate did not have a power or discretion to grant or to refuse to grant the visa.  The belated supply of Mr Kundu’s statutory declaration to the RRT did not alter “all the powers and discretions that [were] conferred by [the] Act on the person who made the decision” (cf s 415(1)).  The powers and discretions conferred on the RRT here by subs 415(1) are those powers and discretions that the Act would have conferred on the Delegate if different circumstances had obtained at the time when the Delegate decided to refuse to grant the visa.  Subsection 415(1) confers on the RRT all the powers and discretions conferred by the Act on a delegate of the Minister dealing with a valid application for a visa only in a case where the particular delegate was in fact dealing with a valid application for a visa.

19                  For the above reasons, in my view the RRT did not have power to refuse to grant the visa or to affirm the Delegate’s decision refusing to grant it.

Conclusion

20                  The applicant should be granted leave to file an amended application relying on the grounds specified in paras (b) and (c) of s 476(1) of the Act.  After this has been attended to I will make an order setting aside the RRT’s decision.  In conformity with the above reasons, I will not refer the matter to which that decision relates back to the RRT.  There will be an order that the Minister pay Mr Kundu’s costs.

Associate:

Dated:              3 May 2000