FEDERAL COURT OF AUSTRALIA

Yilmaz v Minister for Immigration & Multicultural Affairs

[2000] FCA 906

MIGRATION – refugees – protection visa – appeal against decision of primary judge dismissing application for review of decision of Refugee Review Tribunal – where initial application for protection visa did not comply with statutory requirements – whether Migration Regulations 1994 (Cth) have the effect that the application must be perfectly complete when lodged and that any deficiencies cannot be cured during merits review by Refugee Review Tribunal – the words “a valid application for a visa” in s 65 of the Migration Act 1958 (Cth) do not form part of the conditions of exercise of power

ADMINISTRATIVE LAW – administrative decision – whether application seeking and receiving full merits review cures initial defects

Migration Act 1958 (Cth) ss 29, 31, 36, 40, 45, 46, 47, 48, 54, 55, 65, 69, 411, 412, 415, 417, 420, 430

Migration Regulations 1994 (Cth) regs 2.03, 2.04, 2.07, 886.21, 886.22

Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 cited

Minister for Immigration & Multicultural Affairs v A (1999) 168 ALR 594 discussed

Phanouvong v Minister for Immigration & Multicultural Affairs [1999] FCA 1489 applied

Li Wen Han v Minister for Immigration & Multicultural Affairs [2000] FCA 421 disapproved

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

Nie v Minister for Immigration & Multicultural Affairs [2000] FCA 347 referred to

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1 applied

Minister for Immigration & Multicultural Affairs v A [2000] FCA 108 referred to

Calvin v Carr [1980] AC 574 cited

The King v Hickinan; ex parte Fox and Clinton (1945) 7 CLR 598 cited

McDougall v Warringah Shire Council (1993) 30 NSWLR 258 cited

Wu v Minister for Immigration (1994) 48 FCR 294 cited

Twist v Randwick Municipal Council (1976) 136 CLR 106 cited

R v Marks; Ex parte Australian Building Construction Employees & Builders Labourers Federation (1981) 147 CLR 471 cited

Queensland Newsagents Federation Ltd v Trade Practices Commission (1993) 46 FCR 38 cited

Preston v Carmody (1993) 44 FCR 1 cited

Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) 169 ALR 515 cited

Meyers v Casey (1913) 17 CLR 90 cited

MUZAFFER YILMAZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 494 of 1999

SPENDER, MARSHALL AND GYLES JJ

MELBOURNE

14 JULY 2000

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 494 of 1999

BETWEEN:	MUZAFFER YILMAZ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	SPENDER, MARSHALL & GYLES JJ
DATE OF ORDER:	14 JULY 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

The appeal be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 494 of 1999

BETWEEN:

MUZAFFER YILMAZ

APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE:	SPENDER, MARSHALL & GYLES JJ
DATE:	14 JULY 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

SPENDER J:

1 I have had the opportunity of reading in draft form the reasons for judgment of Marshall J and the reasons for judgment of Gyles J. As those judgments demonstrate, the questions in issue on this appeal have been the subject of considerable disagreement. The application form of the appellant, at the time it was lodged, indicated “statement to follow” concerning enquiries as to matters relevant to whether Australia owes protection obligations to him. The promised statement was not supplied prior to the decision by a delegate of the Minister purporting to refuse Mr Yilmaz’s application for a protection visa. It was, however, part of the material considered by the Refugee Review Tribunal (RRT), which reached the view, on a consideration of the claim for refugee status, that there was no obligation to grant a protection visa to Mr Yilmaz.

2 As Gyles J writes in paragraph 73 of his reasons for judgment here:

“In Phanouvong v Minister for Immigration & Multicultural Affairs [1999] FCA 1489 Finn J held that material received by the RRT would cure deficiencies in an application in circumstances not distinguishable from the present. In Minister for Immigration & Multicultural Affairs v A [(1999) 168 ALR 594]) Merkel J referred to, and implicitly agreed with, this decision. However, Heerey J in Li Wen Han v Minister for Immigration & Multicultural Affairs [[2000] FCA 421] and Lindgren J in Kundu v Minister for Immigration & Multicultural Affairs [2000] FCA 560 have each taken a different view and refused to follow Finn J…”

3 In this appeal I agree with the reasons for judgment of Gyles J, and with the orders that he proposes. In particular, I agree with Gyles J as to the operation of s 69 of the Migration Act 1958 (the Act). I wish to add a few observations of my own.

4 The starting point is s 29 of the Act which, relevantly, provides:

“(1) Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following:

(a) travel to and enter Australia;

(b) remain in Australia.

…”

5 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 …36 …

(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 …36 …

(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.”

6 Section 36 provides:

“(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.”

7 Section 40 deals with circumstances for granting visas, and relevantly provides:

(1) The regulations may provide that visas or visas of a specified class may only be granted in specified circumstances.

(2) Without limiting subsection (1), the circumstances may be that, when the person is granted the visa, the person:

(a) is outside Australia; …”

8 Section 45 provides:

“(1) Subject to this Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class.

(2) Without limiting subsection (1), the regulations may prescribe the way for making:

(a) an application in specified circumstances; or

(b) an application for a visa of a specified class; or

(3) Without limiting subsection (1), the regulations may provide that, when an application for a visa of a specified class is made, the applicant:

(a) must be outside Australia; or

(b) must be in immigration clearance; or

(d) must be in the migration zone and, on last entering Australia:

(i) have been immigration cleared; or

(ii) have bypassed immigration clearance and not have subsequently been immigration cleared.”

9 Section 46 relevantly provides:

“(1) Subject to subsection (2), an application for a visa is valid if, and only if:

(a) it is for a visa of a class specified in the application; and

(b) it is made in the way required by subsection 45(2), including any way required by subsection 45(3); and

…”

10 Section 47, which is set out in the judgments of both Marshall J and Gyles J, requires the Minister to consider a valid application for a visa and enjoins the Minister not to consider an application that is not a valid application. Section 47 is the only section in Subdivision AA of Division 3 of Part 2 of the Act which imposes obligations on a Minister, as opposed to conferring a discretion on him or her.

11 Section 65 contained in Subdivision AC of Division 3 of Part 2 relevantly provides:

“(1) After considering a valid application for a visa, the Minister:

(a) if satisfied that:

…

(ii) the …criteria for it prescribed by this Act or the regulations have been satisfied;

…

is to grant the visa; or

(b) if not so satisfied, is to refuse to grant the visa.

…”

12 Section 69 provides that:

“(1) Non-compliance by the Minister with Subdivision AA …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.

…”

13 Regulation 2.03 in Part 2 of the Migration Regulations 1994 (the Regulations) provides:

“(1) For the purposes of subsection 31(3) of the Act (which deals with criteria for the grant of a visa), the prescribed criteria for the grant to a person of a visa of a particular class are:

(a) the primary criteria set out in a relevant Part of Schedule 2; or

(b) if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria.

…”

14 Regulation 2.04 provides:

“For the purposes of section 40 of the Act, and subject to these Regulations, the only circumstances in which a visa of a particular class may be granted to a person who has satisfied the criteria in a relevant Part of Schedule 2 are the circumstances set out in that Part of Schedule 2.

15 Regulation 2.07 provides:

“(1) For the purposes of sections 45 and 46 of the Act (dealing with application for a visa), if an application is required for a particular class of visa, the following matters are set out in the relevant Part of Schedule 1:

(a) the approved form (if any) to be completed by an applicant;

(b) the visa application charge (if any) payable in relation to an application;

…

(3) An applicant must complete an approved form in accordance with any directions on it.”

16 Regulation 866.21 deals with subclass 866 – protection visas, and provides criteria to be satisfied at time of application:

“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.”

17 Regulation 866.22, which deals with criteria to be satisfied at time of decision, provides amongst other things that:

“The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the refugees convention.”

18 Insofar as the Regulations define the circumstances which are applicable to grant of a protection visa, Regulation 866.4 provides that “The applicant must be in Australia.”

19 In the light of the above statutory regime, when a person seeking a protection visa submits an “application” which, in respect of the claims for protection under the Refugees Convention, notes “statement to follow”, it is not at that time a valid application. It is inchoate. The duty of a delegate of the Minister is not to consider it: s 47(3) of the Act.

20 If, before the making of a decision of the delegate, the promised information is supplied, in my opinion the amalgam of the original document with the claims foreshadowed in it, and the document expressing the claims that had been foreshadowed, constitutes a valid application, and the delegate is to exercise the powers referred to in s 65 of the Act in relation to it.

21 As a matter of common sense, it seems to me that an application based on grounds which are said to be “to follow” is not complete until those grounds have been supplied.

22 What is the position if the “statement to follow” of the claims for an entitlement to protection under the Refugees Convention are not supplied until after the purported decision of the delegate to refuse a protection visa (as is the case here)? Section 415 of the Act, dealing with the powers of the RRT, provides:

“(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.

…”

23 In my opinion, if the delegate of the Minister has power to entertain an application constituted by an originating document followed by a statement of the grounds on which protection is claimed, as in my opinion the delegate does, so too does the RRT. In this case the RRT, in performing its function, concentrated on the merits of the appellant’s claim to protection under the Refugees Convention.

24 Consistent with the judgment of von Doussa J in Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 (with which French J and I agreed), had the question of whether the delegate lacked power, on the material before him, to decline to issue a protection visa been raised before the RRT, that Tribunal would have had power and jurisdiction to make its own decision on the by-then-complete application, and to substitute its own decision if it concluded that the earlier decision maker had not been authorised to make the decision that it did.

25 It follows, in my opinion, that the RRT had power and jurisdiction to enquire into the merits of the applicant’s claim to a protection visa. As to the aspects of the decision by the RRT on the merits of Mr Yilmaz’s application, no error has been demonstrated in the reasons of the learned primary judge.

26 I agree with the orders proposed by Gyles J.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated: 14 July 2000

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 494 of 1999

BETWEEN:

MUZAFFER YILMAZ

APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE:	SPENDER, MARSHALL & GYLES JJ
DATE:	14 JULY 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

MARSHALL J:

27 This is an appeal from the judgment of a single Judge of the Court (“the primary Judge”) in which the application of the appellant, Mr Yilmaz, for judicial review of a decision of the Refugee Review Tribunal (“RRT”), was dismissed by the primary Judge.

Background

28 Mr Yilmaz is a citizen of the Republic of Turkey. He is of Kurdish ethnicity and is an Alevi Muslim. He entered Australia on 7 July 1997 on a temporary business visa which was valid until 3 August 1997. Mr Yilmaz applied to the respondent’s department for a protection visa. His application was made under the cover of a letter from Victoria Legal Aid (“VLA”) dated 6 August 1997.

29 In the application form completed by or on behalf of Mr Yilmaz the response “STATEMENT TO FOLLOW” was supplied in relation to the following questions concerning Mr Yilmaz and Turkey:

· 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?

30 On 13 October 1997 Mr Yilmaz made a statutory declaration. The declaration provided answers to the questions raised in the application form. It was provided to the respondent’s department by VLA under the cover of a letter dated 15 October 1997 but was not received until 20 October 1997.

31 In the meantime, also on 15 October 1997, a delegate of the respondent purported to refuse Mr Yilmaz’s application for a protection visa, chiefly having regard to the lack of claims advanced in his application.

32 Under the cover of a letter dated 22 October 1997 from VLA, Mr Yilmaz applied for a review of the decision of the delegate by the RRT. In its decision dated 20 October 1998 the RRT decided that it was not satisfied that Mr Yilmaz was a refugee. The RRT affirmed the decision of the delegate not to grant a protection visa to Mr Yilmaz. Mr Yilmaz applied to the Court to review the decision of the RRT. On 5 August 1999 the primary Judge dismissed the application.

33 On appeal, counsel for Mr Yilmaz made submissions on an issue of importance which had not been raised before the primary Judge. That issue concerned the consequences of it being accepted that the application made to the delegate (“the primary application”) was an invalid one.

The legislative context

34 Section 40(1) of the Migration Act 1958 (Cth) (“the Act”) provides that:

“The regulations may provide that visas or visas of a specified class may only be granted in specified circumstances.”

Regulation 2.04 of the Migration Regulations 1994 (Cth) provides that:

35 As Merkel J said in Minister for Immigration & Multicultural Affairs v “A” [1999] FCA 1679; (1999) 168 ALR 594 (at par 19):

“Schedule 2, which contains provisions with respect to the grant of sub-classes of visas, provides in cl 866.21(a) that all applicants for a Protection visa must satisfy the primary criteria one of which was that, at the time of the application, the applicant must make:

“specific claims under the Refugees Convention”.”

36 Section 45 of the Act provides so far as is material that:

“(1) Subject to this Act and the regulations, a non - citizen who wants a visa must apply for a visa of a particular class.

(2) Without limiting subsection (1), the regulations may prescribe the way for making:

(a) an application in specified circumstances; or

(b) an application for a visa of a specified class; or

37 Section 46(1)(b) of the Act provides that:

“Subject to subsection (2), an application for a visa is valid if, and only if:

(b) it is made in the way required by subsection 45(2), including any way required by subsection 45(3);”

38 As Merkel J said in “A” (at par 21):

“Regulation 2.07 provides that, for the purposes of ss 45 and 46 of the Act, if an application is required for a particular class of visa, the matters that are set out in the relevant Part of Sch 1 are the approved form (if any) to be completed by an applicant, the visa application charge and other matters relating to the application. Regulation 2.07(3) states that an applicant must complete an approved form in accordance with any directions in it. Schedule 1 of the regulations, which relates to classes of visas, contains a note that the Schedule sets out the specific ways in which a non-citizen is to apply for a visa of a particular class. The note continues:

“An application that is not made as set out in this Schedule is not valid and will not be considered: see the Act ss 45, 46, and 47”.”

39 Section 47(1) of the Act provides that:

“The Minister is to consider a valid application for a visa.”

Under s47(3) of the Act:

“… the Minister is not to consider an application that is not a valid application.”

40 Subdivision AB of Div 3 of the Act is entitled “Code of procedure for dealing fairly, efficiently and quickly with visa applications”. The subdivision includes ss54 and 55 of the Act. Section 54 of the Act requires the Minister to have regard to all of the information in the application when deciding whether to grant a visa. Section 55 of the Act permits an applicant to give the Minister additional information before the Minister makes a decision.

41 Section 65 of the Act (which is contained in subdiv AC of Div 3 of the Act) provides, as Merkel J said in “A” (at par 27), that, “after considering a valid application for a visa, the duty of the Minister is to grant the visa if satisfied that the relevant criteria and conditions have been satisfied and, if not so satisfied, to refuse to grant the visa”.

42 Section 69 of the Act (which is also contained in subdiv AC of Div 3 of the Act) provides as follows:

“(1) 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.

(2) If the Minister deals with a visa application in a way that complies with Subdivision AA, AB and this Subdivision, the Minister is not required to take any other action in dealing with it.”

43 Section 411 of the Act refers to the type of decisions which are reviewable by the RRT. They include in s411(1)(c) “a decision to refuse to grant a protection visa”.

Validity of the primary application

44 As Merkel J said in “A” (at par 27):

“… there appears to be no power to make a decision to grant or refuse to grant a visa other than after considering a valid application.”

Further, as Merkel J said in “A” (at par 32):

“A valid application for a Protection visa in sub-class 866, inter alia, is one where the visa applicant completes the approved form for the visa application in accordance with the directions contained in the application.”

45 A consequence of Mr Yilmaz’s omission to complete the approved form in accordance with relevant directions is that he did not make specific claims under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1968 at either the time of his application, or prior to the delegate’s decision. Accordingly, “(a)s the application was not a valid application for a visa, the Minister was not entitled to consider it” (per Finkelstein J in “A” at par 120).

46 The following words of Finkelstein J in “A” (at par 121) are apposite to Mr Yilmaz’s case:

“In this case a delegate of the Minister considered an invalid application for a visa in contravention of s 47(3). According to the delegate, he decided to refuse to grant the visa. Of course, that is not a proper characterisation of what the delegate did. In reality the delegate made no decision at all. His act was devoid of legal content.”

47 I agree with Finkelstein J that s69 of the Act does not render the decision of the delegate valid in the circumstances in “A” which also apply in the instant case. As Finkelstein J said of s69 of the Act (at par 122):

“One purpose of this section is to prevent compliance with subdivision AA or AB being treated as a condition of the exercise of the power to grant or to refuse to grant a visa. The section can have no application in the present case for two reasons. First, it applies only in the case of a decision to grant or to refuse to grant a visa. Here, as I have demonstrated, no such decision has been taken. Second, it applies when there has been non-compliance with the relevant statutory provisions (those found in subdivision AA and AB) in relation to a visa application. That can only occur, in my opinion, when there has been non-compliance with regard to a valid visa application and not a purported or invalid application.”

48 Merkel J expressed a similar view in “A” (at par 50) where he emphasised that a decision made under s65 of the Act to refuse to grant a visa after considering an invalid application is not preserved by s69 of the Act.

49 In “A”, in addition to making an invalid application to the Minister which was rejected by a delegate, the applicant failed to apply to the RRT within the time provided by the Act. In Mr Yilmaz’s case, additional information to that provided in the primary application was given in his statutory declaration. That material was before the RRT. In “A”, Merkel J said (at par 49):

“If the non-compliance related only to the issue of considering an invalid application it need not necessarily result in invalidity on a review of the decision. Thus, if information omitted from an application is later provided, consideration of the invalid application need not result in invalidity of the visa decision. Whilst it is unnecessary to consider that situation in the present case it is clearly arguable that the subsequent provision of the information might overcome the initial invalidity. The answer to that question would involve consideration of the role of ss 54(1), 54(2)(c) and 55 which require the Minister to have regard to all of the information “in the application” which, for the purposes of s 54(1), includes information provided subsequently under s 55. It may be that in such circumstances a valid application is to be regarded as having been made when the subsequent information is provided: see Phanouvong v Minister for Immigration and Multicultural Affairs [1999] FCA 1489 at [25].”

50 No other member of the Court in “A” dealt with this issue, which did not arise on the facts of “A”. The issue did arise in Phanouvong v Minister for Immigration & Multicultural Affairs [1999] FCA 1489, in which no reference is made to s65 of the Act. The issue also arose in Li Wen Han v Minister for Immigration & Multicultural Affairs [2000] FCA 421. In that matter, an invalid application was considered and refused by a delegate of the Minister. After an application was made to the RRT, relevant supporting material was supplied on behalf of the applicant. The only difference between Li Wen Han and the instant matter is the fact that the relevant supporting material was supplied to the respondent prior to the application to the RRT. Nothing turns on this point of difference. In Li Wen Han, afterreferring to the passage from the judgment of Merkel J in “A” which is quoted from in the proceeding paragraph of these reasons, Heerey J said (at par 42):

“I would respectfully doubt whether that is the case, given the explicit requirement for the visa application form itself to contain, amongst other things, details of the specific Convention claims: s 40(1), reg 2.04, sch 2, cl 866. Section 54(1) proceeds on the assumption that there is an application in existence, which must mean a valid application. Section 55 is concerned with “additional relevant information”. But additional to what? The answer must be, additional to the information contained in a valid application, the statutory precondition for the valid grant or refusal of a visa. But in any event in the present case there was no further information provided before the delegate’s decision. Therefore that decision was invalid, and the RRT should have so found.”

51 Consistently with the views of Finkelstein J in “A”, Heerey J in Li Wen Han said (at pars 49 to 51):

“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.

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 I respectfully agree with that analysis of Heerey J, which is consistent with the scheme of the legislation as examined in these reasons.

53 The same view was recently taken by Lindgren J in Kundu v Minister for Immigration & Multicultural Affairs [2000] FCA 560. In Kundu, the applicant made an invalid application for a protection visa in July 1998 which was refused by a delegate in mid August 1998. In late August 1999 relevant supporting material was provided on behalf of the applicant to the RRT prior to its hearing four days later. The circumstances in Kundu are materially indistinguishable from those in the instant case. Lindgren J referred to Phanouvong which was referred to by Merkel J in “A”. His Honour then referred to Li Wen Han. Lindgren J concluded (at par 19), consistently with Li Wen Han, that “the RRT did not have power to refuse to grant the visa or to affirm the Delegate’s decision refusing to grant it”. I agree with the following observations of Lindgren J in Kundu (at pars 17 and 18):

“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) … 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 … 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.”

Consequence of the invalidity of the primary application

54 I also agree with the views of Heerey J in Li Wen Han which are consistent with the views expressed by Lindgren J in Kundu. It follows that I do not agree with the contrary approach in Phanouvong and emphasise that no reference was made to s65 of the Act in that later case. See also Nie v Minister for Immigration & Multicultural Affairs [2000] FCA 347 per Heerey J.

55 In my view, it logically follows from the invalidity of the primary application that the application to the RRT to review the delegate’s decision was invalid, as was the delegate’s decision itself. The RRT’s jurisdiction under s411(1)(c) of the Act to review a decision of the respondent to refuse to grant a protection visa depends on there being, in law, an extant valid decision of the respondent. No such valid decision was made as the primary application was a nullity. It did not comply with the Act in a substantial way. See also s415(4) of the Act.

56 It matters not that the information which should have originally been provided to the respondent was before the Court on review. The RRT’s jurisdiction to review only arises under the relevant legislative scheme if a review is sought of a valid primary application. It is not to the point to say that the RRT can review a legally ineffective decision of a delegate of the respondent. An anterior question is whether there is in law something which can be described as a decision which the delegate was not entitled to make.

57 Having regard to my views on the jurisdictional issue raised by the appeal it is unnecessary to consider the other grounds of appeal which were relied upon by Mr Yilmaz.

The contention to the contrary

58 The respondent contended that the decision of the delegate being “a decision of the Minister to refuse to grant a protection visa” was reviewable by the RRT pursuant to s411(1)(c) of the Act. It was also contended that the word “decision” in s411(1)(c) included a purported decision. As Finkelstein J pointed out in “A”, it is difficult to perceive something that is a nullity and in reality not a decision at all as qualifying as a decision for the purposes of s411(1)(c) of the Act.

59 The respondent nonetheless sought to make good his contention by referring to the “merits review” function of the RRT. He referred to authorities dealing with review of administrative decisions by the Administrative Appeals Tribunal (“AAT”) to illustrate that in that context legally ineffective decisions can be the subject of a review. Reliance was placed on the judgments of Bowen CJ and Smithers J in the Full Court in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1. In Brian Lawlor, Smithers J said (at 25):

“… it is my view that the fact that a decision is made by an administrator to take action which he has no power to take in a legally effective way does not exclude that decision from review by the Tribunal.”

60 In Brian Lawlor there was no legislative equivalent to s65 of the Act. The case concerned a matter before the AAT in which it was requested to set aside a decision which had been made by the Collector of Customs (New South Wales) to revoke a warehouse licence. It was held that the Collector had no power to revoke the licence and that the invalid decision to do so was subject to review in the AAT. The Collector’s decision was not preconditioned in Brian Lawlor on there being some valid application before him. The relevant legislation did not commence with the words: “After considering a valid application for the revocation of a warehouse licence” (cf s65 of the Act). The facts of Brian Lawlor and the legislative regime referred to in that case are so far removed from the facts and legislative regime under consideration in the instant matter that they are of no assistance in determining this appeal. The Full Court judgment in Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 applied Brian Lawlor in a matter going to the jurisdiction of the AAT. Reliance by the respondent on that judgment advances the issue no further than Brian Lawlor. The legislative approach in the Act, as evidenced in the opening words of s65, is in stark contrast to the provisions of the Social Security Act 1991 (Cth) and the Administrative Appeals Tribunal Act 1975 (Cth) which were examined in Alvaro.

61 To the extent that the respondent relies on the ability of merits review to occur before the RRT after an invalid decision of the delegate, such reliance is flawed in any event. As counsel for Mr Yilmaz submitted there was but one purported administrative decision on the merits of Mr Yilmaz’s application, the delegate not having considered any of Mr Yilmaz’s claims as they crossed in the mail with the delegate’s decision. In no real sense can the RRT be said to have engaged in merits review of Mr Yilmaz’s application.

Relief

62 I would make the following order:

1. The appeal be allowed.

2. The decision of the Refugee Review Tribunal of 20 October 1998 be set aside.

3. The respondent pay the appellant’s costs of the appeal, including reserved costs.

63 The consequence of the making of such an order is that Mr Yilmaz is entitled to make a fresh, valid application for a protection visa. See Li Wen Han (at pars 54 and 55) and Minister for Immigration & Multicultural Affairs v “A” [2000] FCA 108.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated: 14 July 2000

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 494 of 1999

BETWEEN:

MUZAFFER YILMAZ

APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE:	SPENDER, MARSHALL & GYLES JJ
DATE:	14 JULY 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

GYLES J:

64 The appellant is a Turkish national who is an Alevi of Kurdish ethnicity. He arrived in Australia in July 1997 on a temporary business visa pursuant to the Migration Act 1958 (Cth) (“the Act”), which was obtained as a result of false information being presented to Australian consular officials. On 7 August 1997 an application was lodged on his behalf for a protection visa, which was incomplete, omitting all the required information relating to his claim to be entitled to protection as a refugee, including “statement to follow” on the form beside various questions, with a promise to provide the statement within a two week period. On 13 October 1997 the appellant signed a statutory declaration that set out his various claims. It was posted to the Department of Immigration & Multicultural Affairs on 15 October 1997. On that date, and prior to the receipt of the missing information, a delegate of the Minister considered the “application” and refused a visa, not because the application was incomplete but because, in the absence of the missing information, the appellant could not establish his claim to protection on the merits.

65 On 22 October 1997 an application for review of the delegate’s decision was forwarded to the Refugee Review Tribunal (“RRT”). By letters of 18 December 1997 and 21 May 1998 the appellant provided a good deal of material to the RRT, including a second statutory declaration dated 21 May 1998, the object of which was to correct errors in the first declaration which was also provided to the RRT. On 14 July 1998 the Tribunal conducted a hearing, at which the appellant gave evidence through an interpreter. On 31 July 1998 a further submission on behalf of the appellant was sent to the RRT. On 22 October 1998 the RRT notified the appellant of its decision affirming the delegate’s decision not to grant a protection visa.

66 The appellant then applied to the Court, relying upon s 476(1)(a), s 476(1)(g) and s 476(4)(b), s 476(1)(e) and s 476(1)(f) of the Act. Finn J heard the matter on 19 July 1999, and on 5 August 1999 dismissed the application. On 26 August 1999 the appellant appealed from the whole of the decision of Finn J. On 11 February 2000 the appeal was listed for hearing before a differently constituted Full Court. When the case was called, the Court, of its own motion, apparently suggested to the appellant that he might seek to take advantage of some recent decisions, and appeal against the failure of Finn J to hold that the application for review to the RRT brought by the appellant himself was invalid and without jurisdiction notwithstanding that no application was made to his Honour for any such order. If successful, and if some recent decisions are correct, this would leave the appellant free to commence the process correctly, notwithstanding s 48A of the Act. It appears that the original source of the argument was suggestions from the bench in the course of argument in Minister for Immigration & Multicultural Affairs v A (1999) 168 ALR 594 (see pars [17] and [108]). It is a consequence of this line of reasoning that the appellant has taken his chance of succeeding on the merits both before the RRT and Finn J and does so again in this appeal and only raises the issue at the appellate level after failure on the merits at both earlier levels. As remarked upon during the hearing, it is ironic that the appellant here is insisting on, and the Minister is opposing, a strict reading of the Act which would normally work against the interests of an applicant for a visa.

67 There is no doubt as to the practical importance of the issue. The relevant portion of the application form for a protection visa has not been completed in a number of the cases which have come before me. Already one case has been argued before me in which the same point is taken, and I am aware of two other decisions which have been reserved awaiting this decision, even though the decisions on the point have only recently emerged. If good, the point will enable fresh applications to be brought in every case in which the initial application did not comply with the statutory requirements, regardless of the fate of that application.

68 It is not immediately apparent to me why the appropriate method of proceeding, if the appellant is correct, is not for an unsuccessful applicant to simply make another substantive application and, if the Minister fails to deal with it because of s 48A, then to bring proceedings in the nature of mandamus to compel the Minister to act. This would avoid the absurdity of an applicant appealing to the Court to have its own application to the RRT being declared invalid, whilst continuing to press an appeal on the merits. However, the Minister does not oppose the amendment to the notice of appeal to raise the issue, and we must consider it. We must do so without the benefit of a judgment on the point below.

NEW GROUND – VALIDITY OF PROCEEDINGS

69 The appellant’s argument starts from a firm foundation – namely, that compliance with the statutory requirements for an application for a protection visa is necessary to the validity of that application. The combined effect of ss 40, 45, 46 and 47 of the Act make this apparent. It is also clear that the application in this case did not comply with an essential requirement in that it entirely omitted the basis of the claim for protection as required by Reg 2.07 and, perhaps, Reg 2.04. (See the discussion by Merkel J in Minister for Immigration & Multicultural Affairs v A (supra) at pars [32] to [45].)

70 Indeed, where an applicant omits essential information from a prescribed form and, as occurred here, writes “statement to follow” in the relevant portions of the form, there is much to be said for the view that an application has not been made at all until the statement to follow is received (cf Heerey J in Li Wen Han v Minister for Immigration & Multicultural Affairs [2000] FCA 421 at par [49]). This way of looking at the matter was not pursued in any detail in the submissions. In any event, whether the application in its original form was made but was invalid, or was not made at all, the Minister was obliged not to consider it on the merits whilst it remained in that form. If it was not made, there was nothing to consider. If invalidly made, s 47 spells out what would otherwise have been the position in any event. It was in the following terms:

“[s 47] Consideration of valid visa application

47(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

(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 is not valid and cannot be considered is not a decision to refuse to grant the visa.”

71 Thus, the Minister’s delegate was plainly in error in purporting to refuse a visa on the merits, rather than in declining to consider the application as it stood. Furthermore, the refusal was conveyed in a manner which invited a review of the merits of the decision:

“Review Rights

If you and members of your family unit included in your application who have been refused think this decision is wrong, you may apply for review of the decision to the Refugee Review Tribunal (RRT). Please note that there are time limits for making such an application. Information about applying for review is included with this letter.

…

Your status in Australia

You have been granted a Bridging Visa A which allows you to remain in Australia lawfully for 28 days from the date of this letter. If you make a valid application for review within this 28 day period, your Bridging Visa will be valid until 28 days after a final decision is made on your application.

If you do not seek review

As your Bridging Visa expires 28 days after notification of this decision, you should make arrangements to leave Australia as soon as possible, if you:

· do not apply for a review;

· have no further applications with the Department; and

· do not have a substantive visa.

You should advise the Department’s Compliance Section if you are making arrangements to depart Australia. The telephone number is (03) 9235 3086.”

72 In my opinion, if the statutory declaration of 13 October 1997 had been received prior to the decision of the delegate on 15 October, it would have either completed the application or cured the defect, whichever may be the correct analysis. The applicant submits that the combined effect of Reg 2.04 and 2.07 and the relevant parts of Schedule 1 and Schedule 2 to the Regulations have the effect that the application must be perfectly complete when lodged, and that any deficiencies cannot be cured later. There is some support for this argument in the language of the Regulations, but it is by no means compelling enough to warrant such an unreasonable construction. In particular, it seems to me that the words in Schedule 2 “Criteria to be satisfied at the time of application” (which are the high point of the appellant’s argument on this issue) refer generally to the time of application as contrasted with the time of decision, rather than referring to a particular date upon which the paper is first lodged. I shall return to consider some authorities later. In any event, where an application is expressed to be incomplete, in my opinion, “time of application” would certainly comprehend the completion of it.

73 However, that did not occur. The delegate acted prior to the receipt of the statutory declaration. It is submitted for the applicant that the decision of which it sought review by the RRT was made on 15 October 1997. It is submitted that, apart from anything else, the decision to refuse the visa was a breach of s 65, the substantive source of power, as that section requires consideration of a valid application for a visa. In this case, the appellant did exercise his right to a review on the merits by the RRT, and, on any view, the deficiencies in the application were cured by the material before the RRT if it could be taken into account for that purpose. In Phanouvong v Minister for Immigration & Multicultural Affairs [1999] FCA 1489 Finn J held that material received by the RRT would cure deficiencies in an application in circumstances not distinguishable from the present. In Minister for Immigration & Multicultural Affairs v A (supra) Merkel J referred to, and implicitly agreed with, this decision. However, Heerey J in Li Wen Han v Minister for Immigration & Multicultural Affairs (supra) and Lindgren J in Kundu v Minister for Immigration & Multicultural Affairs [2000] FCA 560 have each taken a different view and refused to follow Finn J, although their reasoning is not identical.

74 Each of their Honours took the view that the decision of the delegate was a decision within the meaning of ss 411 and 412 of the Act for the purposes of review by the RRT. Finn J held that s 69 applied. Heerey J applied the principle in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1, namely, that an administrative decision which is legally ineffective or void may be susceptible to appeal. Lindgren J seems to accept the application of s 69.

75 Section 69 is in the following terms:

“[s 69] Effect of compliance or non-compliance

69(1) 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.

(2) If the Minister deals with a visa application in a way that complies with Subdivision AA, AB and this Subdivision, the Minister is not required to take any other action in dealing with it.”

76 It is submitted for the appellant that s 69 had no application because the substantive decision could only be authorised by s 65, which is not in subdivisions AA or AB, and it is said that this was decided by Merkel and Finkelstein JJ in Minister v A (supra). Merkel J (par [49] to [51]) and Finkelstein J (par [122]) certainly express the view that s 69 had no application in that case. The reasoning of their Honours on the point is not identical, and the place of the point in the decision of each differs.

77 Indeed, Minister v A is a difficult case from which to extract a ratio decidendi. Each of the members of the bench took a different position, and the particular point at issue here was raised for the first time by the Court on the hearing of the appeal, and, even then, was deliberately not embraced by either party. Each contended (as had been assumed below) that the application was valid. In these circumstances it is not easy to see why and how the point arose for decision. Notwithstanding what is said by Finkelstein J at par [119], in my opinion, the point was not jurisdictional in the true sense.

78 That proceeding had been commenced in the High Court of Australia for particular prerogative relief in relation to a particular application for a visa and decisions relating to it. It was remitted to the Federal Court as such, and its character did not vary by amendment or otherwise. Emmett J held that the remitter was ineffective, as the Court had no jurisdiction to hear the remitted action by virtue of ss 475, 485 and 486 of the Act. It followed that the orders made by the primary judge had to be set aside in whole for lack of jurisdiction. Finkelstein J agreed with the conclusion of Emmett J as to jurisdiction on the basis of the case as it was remitted and stood, but took the view that the Court was able to go behind the case as it was remitted, and as it stood, and find for itself that the application was invalid for reasons not advanced by either party and not reflected on the pleadings. Merkel J disagreed with Emmett J and Finkelstein J on the issue of jurisdiction, but agreed with the invalidity of the application. The effect of s 69 was only relevant to the invalidity argument. I cannot see that any issue of invalidity arose in the case in a manner which could lead to any binding decision. The proceedings were simply not constituted in a manner apt to enable this to occur. In my opinion, the decision is binding authority only for the proposition that the Court lacked jurisdiction to deal with the issues remitted to it. In those circumstances, I cannot discern any ratio on the point at issue here which binds this Court, although the views of their Honours are entitled to respect and consideration. It is also to be remembered that what was said about s 69 in Minister for Immigration & Multicultural Affairs v A did not relate to the issue here as there was no review by the RRT nor any appeal from the RRT to the Court in that case. If, contrary to my view, a decision as to the effect of s 69 is part of the ratio of the case, then, in my respectful opinion, it is clearly wrong and ought not be followed.

79 As I have said, each of Finn J, Heerey J and Lindgren J have held that an invalid decision is nonetheless a decision for the purposes of ss 411 and 412. Heerey J and Lindgren J each held, however, that the RRT, in reviewing such a decision, is limited to holding that it was invalid, rather than reviewing it on the merits. Finn J, on the contrary, held that as the RRT was validly seised of the matter, and, by s 415(1), was entitled to exercise all the powers and discretions that are conferred by the Act on the person who made the decision and come to the correct decision, it was entitled to consider the application as it stood at the time it was completed or perfected before it.

80 The first question is whether each of their Honours was correct in finding that an invalid decision is, nonetheless, a decision for the purposes of ss 411 and 412. I should remark that if the answer is in the negative, it is difficult to see how the Court has any jurisdiction to rule upon the issue raised by amendment.

81 Section 69(1) relates to non-compliance by the Minister with, inter alia, subdivision AA not rendering the decision invalid. When that subdivision is analysed, the only section which imposes a mandatory obligation upon the Minister is s 47, which is set out above. All of the other provisions are permissive, and non-compliance could not lead to invalidity. It is thus clear that s 69 relieves against invalidity based upon a breach of s 47. It is entirely reasonable that this should be so. The Minister is bound not to consider an invalid application, and should not do so. If the Minister does so, however, why should the applicant be penalised for, or affected by, the Minister’s mistake? If a visa has been granted, but the application had been invalid on some ground, it would be unreasonable to have it declared invalid in proceedings thereafter, when the remedy had been in the Minister’s own hands at the time. It might be assumed that a grant would not have been made without a proper basis in fact, leaving aside formal invalidity of the application. The same principle should apply to refusal of the application if the deemed validity ensures a right to review on the merits. Viewed in this way, s 69 prevents approbation and reprobation by the executive to the disadvantage of the applicant. It is worth noting that cancellation of a visa pursuant to s 116(1)(b) is an RRT reviewable decision (s 411(1)(d)).

82 What, then, of s 65, which does not appear in subdivisions AA or AB but is the immediate source of the decision? It is in the following terms:

“[s 65] Decision to grant or refuse to grant visa

65 (1) After considering a valid application for a visa, the Minister:

(a) if satisfied that:

(i) the health criteria for it (if any) have been satisfied; and

(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv) any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b) if not so satisfied, is to refuse to grant the visa.

(2) To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3).”

83 It seems to me that the words “after considering a valid application for a visa” in that section do not form part of the conditions of exercise of the power, but are, rather, the assumption upon which the section proceeds. This is not surprising, since it would be assumed that the Minister would obey s 47, which is directed to the very point. As non-compliance with s 47 is plainly covered by s 69, I do not find any inconsistency between it and s 65, which is directed to those elements (apart from the existence of the application) which must be met before a visa can be granted.

84 The opinion of Merkel J to the contrary in Minister for Immigration & Multicultural Affairs v A (supra) at pars 49 to 51 is based upon a view as to the construction of s 65 which I cannot share. In the same case, Finkelstein J dealt with the point on a different basis, at par 122. In my respectful opinion the first basis disclosed is inconsistent with the authorities I shall examine shortly on the alternate basis for jurisdiction in the RRT. The second basis disclosed does not grapple with the fact that s 47 is the only provision binding the Minister in subdivision AA. It is not clear to me what operation either of their Honours would give to s 69 in relation to a failure to comply with subdivision AA.

85 The alternative basis to consider is that said to flow from the decision in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (supra). In that case Bowen CJ at 4 construed “decision” in s 25 of the Administrative Appeals Tribunal Act 1975 as “a decision in fact made, regardless of whether or not it is a legally effective decision”. The issue of controversy that he identified was whether an invalid decision was “made in the exercise of powers conferred by the enactment” and held that it included a decision made in purported exercise of powers conferred by the enactment. Smithers J also took the view that “decision” was to be construed according to its ordinary meaning, namely, “the action of deciding” notwithstanding that the decision-maker had no power to make the particular decision (at 24-25), and agreed that a decision made by an administrator in purported or assumed pursuance of the relevant statutory provision was reviewable. Deane J dissented, but on the point at issue here said (at 10):

“In considering whether the application satisfied these requirement, it is necessary to distinguish between a colourable exercise of actual power conferred by an enactment and the usurpation of power. The exercise of a power conferred by an enactment will ordinarily involve, at least implicitly, assessment of the content of the power and determination of whether any conditions precedent to its existence or valid exercise have been fulfilled. Such assessment and determination, even if wrong or mistaken, are incidents of the power conferred. A decision as to the exercise of the power which is based upon and is the result of a wrong assessment of content or a mistaken determination that conditions precedent have or have not been fulfilled will, in terms of legal effect, be void or voidable. It is none the less proper, in the context of a legislative scheme for review of decisions made under the enactment, to regard the decision as a “decision under” the enactment: cf Meyers v Casey (1913) 17 CLR 90 at 114-6; Calvin v Carr (1979) 22 ALR 417 at 425-7. Where, on the other hand, an enactment confers no relevant power or function at all, the usurpation of power or function cannot properly be regarded as a “decision under” the enactment merely because the usurper points to the enactment as a source or possible source of any decision-making power or function.”

86 The decision of the Full Court in Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 applied that approach to a set of facts which provide a close analogy with the present case. There, the Administrative Appeals Tribunal (“AAT”) was asked to review a decision of a Social Security Appeals Tribunal (SSAT) which had reviewed a departmental decision to seek recovery of overpayment of benefits on the merits, and affirmed the decision. The AAT held that as it had not been proved that the department officer had authority to make the original decision, each of the SSAT and AAT had no jurisdiction as there was no legally effective “decision”. Von Doussa J said at 219-220 in a judgment agreed in by Spender and French JJ:

“Section 1283 refers simply to “a decision” which has been reviewed by the SSAT, and “the decision” of the SSAT. Unlike the context in which the word “decision” appears in s 25 of the AAT Act, “decision” in s 1283(1) is not qualified by the words “made in the exercise of powers conferred by that enactment”. In s 1283(1), even on a literal reading, there is no reason why “decision” should be narrowly construed. The reasons of convenience given by Brennan J at first instance in Re Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167, and by the majority of the Full Court on appeal, supra, apply to require that the narrow interpretation of “decision” in s 1283(1) adopted by the AAT must be rejected. To hold otherwise would defeat the purposes of the review procedures established under the Act. A similar conclusion was reached by the AAT in Re Secretary, Department of Social Security and Pomersbach (1991) 15 AAR 1 at 9.

The right of review by the AAT of a decision of the SSAT given by s 1283(1) arises where an administrative decision made in purported exercise of powers conferred by the Act has, as a matter of fact, been reviewed by the SSAT. That right exists whether or not the decision reviewed by the SSAT, or the decision of the SSAT itself, was legally effective. A similar construction should also be accorded to “decision” in ss 1239 and 1247 which respectively provide for internal review of decisions by the Secretary, and the review of decisions by the SSAT.

…

Prior to the decision of the SSAT there was the original decision made on 31 July 1991, and the decision of the Review Officer. In the hierarchy of reviews from original decision-maker to the AAT it was not necessary that there be at the outset an original decision that was in all respects validly made, and at each level of review thereafter another decision that was in all respects validly made. The person or tribunal to whom application for each of the reviews was made had jurisdiction to undertake that review so long as the preceding decision-maker had made what purported to be a decision in exercise of powers conferred by the Act affecting the interests of the person seeking review. It mattered not whether the ground of complaint made about the preceding decision was merely that it is wrong on the merits, or that in law it was not an effective decision because it was made by someone without authority, or in excess of authority, or for improper purposes, or was vitiated through procedural irregularity such as a failure to accord natural justice.

The purpose of a review provided for by the Act is to allow the reviewing authority to correct error and substitute a new decision where error is detected. Relevantly in the present case the SSAT by s 1253(3) was empowered for the purpose of reviewing a decision (in this case the original decision as affirmed by a Review Officer) to exercise all the powers and discretions that are conferred by the Act on the Secretary.

In the present case, as the review required by the AAT was a review of the decision of the SSAT, that is of the original decision as affirmed by the SSAT, the AAT was not literally correct to describe the decision under review as one encompassing only the conclusions that there was an amount recoverable under s 1224 and that it should be recovered. The decision also included the conclusion that the discretion to waive the debt under s 1237(1) should be exercised against the respondent. The former decision does not necessarily involve and include a decision as to waiver: Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32 at 38-39.

The SSAT in performing its function concentrated on the merits of the proposed recovery from the respondent including the merits of the contention that the debt should be waived, and did not consider the question of Mr Rodda’s authority. In the manner in which the review was conducted before the SSAT, his authority was not raised as an issue. Had it been, and if the SSAT had concluded that the decision made on 31 July 1991 was made in excess of the authority of the decision-maker, the SSAT had power to substitute its own decision in place of an earlier ineffective decision. Likewise the AAT would have jurisdiction and power to substitute its own decision if it concluded that an earlier decision-maker in the process of decision-making and review had acted in excess of authority: Secretary, Department of Social Security v Hodgson at 39-40; 571.” (emphasis added)

In other words, a defect at the time of decision which could not be cured as such was cured by the SSAT making the decision on review.

87 Kirby J has pointed out in a judgment delivered since argument in this case that an appeal may be brought from an order of an inferior tribunal found ultimately to have been void (Residual Assco Group Ltd v Spalvins [2000] HCA 33 at par 69). Calvin v Carr [1980] AC 574 is to the same effect at 590C-E in relation to a criminal trial. See also The King v Hickinan; ex parte Fox and Clinton (1945) 7 CLR 598.

88 In my opinion, these principles are to be applied in the present setting. Brian Lawlor (supra) was a landmark decision in the early days of the jurisdiction of the AAT which had been established to conduct review of certain administrative decisions on the merits as part of a comprehensive set of administrative law reforms. The decision has stood now for over 20 years without dissent and has been regularly applied. It must be taken to have been the law when the RRT provisions were framed. The decision of the delegate on 15 October 1997 was in fact a decision to refuse to grant a protection visa within the meaning of s 411(1)(c), even if invalid. It was submitted that this conclusion could not stand with the requirements of, for example, s 65, and the legislative insistence on complete and valid applications. This mistakes the point. There are no degrees of invalidity. The RRT did have jurisdiction to entertain the review regardless of s 69. This analysis does, however, elucidate s 69. In my opinion, it is intended to have the same effect as does the application of the Lawlor principle.

89 I return to the issue as to whether, assuming jurisdiction in the RRT, it was bound to find the application invalid. I confess to finding this conclusion of Heerey J and Lindgren J to be unattractive. Whilst collateral legal issues may need to be considered, the RRT is established to conduct a review on the merits. The statutory role of the RRT is to stand in the shoes of the decision-maker, and make the correct or preferable decision on the materials before it at the time of decision. It is given no jurisdiction to determine its own jurisdiction or to decide any legal question.

90 Furthermore, it is legitimate to take into account that it may be assumed that Parliament intends that review on the merits by the RRT (which is, of course, open only to applicants) will be as effective as possible. An applicant who receives a decision from the Minister refusing an application on the merits, rather than being told that the application is invalid, would legitimately proceed on the basis that the RRT will review that decision on the merits as they appear to the RRT on the basis of the material before it and in the light of the circumstances then existing.

91 Members of the RRT do not have to have legal qualifications, and are bound by s 420:

“[s 420] Refugee Review Tribunal’s way of operating

420(1)The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2) The Tribunal, in reviewing a decision:

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) must act according to substantial justice and the merits of the case.”

The RRT is inquisitorial in procedure, and there are a number of sections devoted to obtaining as full an account of the facts and circumstances as possible (see Div 4 of Pt 7 in particular).

92 The decision in Alvaro (supra) makes it clear that sections such as s 415, which permit the review body to exercise all the powers and discretions that are conferred by the Act on the original decision-maker, and which provides for it to make its own decision on the merits, will cure many defects which may have rendered the original decision invalid. Once the jurisdiction of the review body (here, the RRT) is enlivened, the decision it makes supersedes the original decision, and the invalidity of the original decision is irrelevant. As Alvaro illustrates, the section permits discretions and powers to be exercised by the RRT which were never even considered by the original decision-maker. See, in a comparable setting; McDougall v Warringah Shire Council (1993) 30 NSWLR 258.

93 Of course, both the general law and s 415(4) have the result that the RRT cannot ignore statutory constraints, and cannot make a valid decision that is not authorised by the Act or the regulations. Thus, if Heerey J in Li Wen Han (supra) were correct in his conclusion that the Act required a complete application on the day of lodgment, with no capacity for the later provision of missing information, then it may be that the RRT would be bound by that constraint, and could not grant a visa as was sought by the appellant. On the other hand if, as I have held, the application may be completed later, then, in my opinion, there is no reason why this cannot take place in the course of the review by the RRT, and Finn J was right to so hold in Phanouvong (supra).

94 The importance which Lindgren J placed upon the Minister having the function of considering an application loses much of its force when the true extent and scope of s 415 is appreciated. It should also be borne in mind that, although the Minister does not participate in the review as an adversary, the Secretary receives a copy of the written statement under s 430(1) and any other document that contains evidence or material upon which the findings of fact were based, and is to be given notice of the handing down of the decision. The Minister, if he or she disagrees with the RRT decision, may substitute a decision more favourable to the applicant (s 417). Subject to that, the system makes the RRT rather than the Minister the final judge of the merits of the application. If it is in favour of the applicant, based upon the information before it, the applicant will succeed, no matter what view the Minister initially took or takes later. I therefore conclude that the RRT was entitled to consider the application on the merits.

95 This construction of the Act seems to me to best accord with a rational and coherent system of review on the merits of adverse decisions as to protection visas. It cannot be assumed that an applicant will have the knowledge or qualifications to comply with all the statutory requirements in making an application and may not have immediately to hand relevant information from overseas. If, in circumstances such as the present, an applicant receives notice that a decision has been made rejecting the application on the merits, it can be taken by the applicant that there will be a review of the decision by the RRT as if it were the original decision-maker but on the materials before it rather than that which was before the original decision-maker. If there is, then the applicant has received the opportunity which the legislation provides, and there is no rational basis upon which the applicant should be entitled to a second chance. In the present case, the RRT did afford a merits review as sought by the applicant. It would be anomalous, in those circumstances, for the applicant to be able to complain to the Court that he was afforded the opportunity he had sought. He invoked the jurisdiction of the RRT and can hardly have the opportunity to complain when it was exercised. He has received the “fair deal” he was entitled to expect when the whole legislative scheme, including full merits review, is considered (Wu v Minister for Immigration (1994) 48 FCR 294, 298-300 (not affected by appeals)). It is not necessary for the purposes of this case to consider the position if there is invalidity in the application which is not cured.

96 This conclusion is also consistent with general administrative law principles. In considering a related, but not identical, question in Twist v Randwick Municipal Council (1976) 136 CLR 106, Mason J said (at 116) (omitting citations):

“…the earlier cases should not be regarded as deciding that the presence of an appeal to another administrative body is an absolute answer to a departure from natural justice or the standard of fairness. The existence of such an appeal does not demonstrate in itself that the inferior tribunal is at liberty to deny a hearing. But if the right of appeal is exercised and the appellate authority acts fairly and does not depart from natural justice the appeal may then be said to have “cured” a defect in natural justice or fairness which occurred at first instance. Certainly this view has been taken in a number of cases – notably by the Privy Council in De Verteuil v Knaggs; Pillai v Singapore City Council and by the Supreme Court of Canada in Re Clark and Ontario Securities Commission and King v University of Saskatchewan; cf Denton v Auckland City and Leary v National Union of Vehicle Builders where the contrary view was taken. In this conflict of authority my preference is for the approach taken by the Privy Council and the Supreme Court of Canada: first, because the party affected has elected to treat the administrative decision as a valid, though erroneous decision, by appealing from it, in preference to asserting his right to a proper performance by the authority of its duty at first instance; and secondly, because in some cases the court will be compelled to take account of the public interest in the efficiency of the administrative process and the necessity for reasonably prompt despatch of public business and balance that interest against the countervailing interest of the individual in securing a fair hearing – in appropriate cases that balance will be achieved if the individual secures a fair hearing on his appeal.”

In the same case Jacobs J said (at 119):

“I do not think that it would at all accord with the legislative intention that an owner should be able to ignore rights of appeal … and instead rely on an absolute invalidity in the order which a council had made.”

See also Calvin v Carr [1980] AC 574 particularly at 594-5; R v Marks; Ex parte Australian Building Construction Employees & Builders Labourers Federation (1981) 147 CLR 471, 484-5; Queensland Newsagents Federation Ltd v Trade Practices Commission (1993) 46 FCR 38, 51-53; and Preston v Carmody (1993) 44 FCR 1, 14-18. Put another way, the existence of a full review on the merits is an integral part of the statutory scheme.

97 The appellant invited the Court to make an order as to his entitlement to make a fresh application if successful in the appeal. As, in my view, he should not succeed, it is not necessary to resolve that issue. I should say, however, that I cannot presently see a proper basis upon which that could have been done in proceedings pursuant to s 476 of the Act. The decision of the High Court in Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) 169 ALR 515 at pars 33 to 36 indicates a reason for caution. In any event, the appellant would have difficulty in persuading me that s 48A should be construed inconsistently with the effect of ss 411, 412, 475 and 476 in the light of the authorities to which I have referred. It would also be necessary to consider the effect of the approbation and reprobation by the applicant as administrative law remedies do not go as of course (see, for example, Meyers v Casey (1913) 17 CLR 90).

ORIGINAL GROUNDS

98 The original grounds of appeal attack the manner in which the trial judge dealt with the complaints by the appellant as to the RRT decision. I see no flaw in the manner in which the issues were disposed of by the trial judge and I cannot improve upon his reasons for doing so. I would dismiss the appeal with costs.

I certify that the preceding thirty five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated: 14 July 2000

Counsel for the Applicant:	Mr A Krohn

Counsel for the Respondent:	Mr R R S Tracey QC and Mr M D Murphy

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	8 May 2000

Date of Judgment:	14 July 2000

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