FEDERAL COURT OF AUSTRALIA

Wimalaratne v Minister of Immigration & Multicultural Affairs [2000] FCA 964

MIGRATION – refugees – review of decision by Refugee Review Tribunal refusing to grant protection visa – whether application form for protection visa referring to statement to be later forthcoming an invalid application – where statement supplied before application refused – whether valid application made at time of subsequent provision of information.

Migration Act 1958 (Cth), ss 476(1) & 481(1)

Nader v Minister for Immigration & Multicultural Affairs [2000] FCA 908 followed

Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906 followed

Coulter’s Case (1599) 5 Rep 30a referred to

R v Farlow [1980] 2 NSWLR 166 discussed

R v Rowbotham (1994) 90 CCC (3d) 449 discussed

Coke Commentary Upon Littleton 1628 fols 126a & 127b

SENAKA SIRISENA WIMALARATNE v

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1333 of 1999

KATZ J

19 JULY 2000

SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

1                     There is before the Court an amended application for review of a decision made by the Refugee Review Tribunal (“the Tribunal”) on 19 October 1999.  The Tribunal’s decision was one to affirm a decision which had been made on 18 November 1997 by a delegate of the Minister for Immigration and Multicultural Affairs (“the delegate” and “the Minister” respectively).  The delegate’s decision had been one to refuse to grant to the applicant in the present proceeding a protection visa.  The Tribunal decided to affirm the delegate’s decision because it concluded that the applicant did not have that well-founded fear of persecution for a Convention reason which was essential for the grant to him of a protection visa.

2                     The amended application for review before the Court contains only one ground of review of the Tribunal’s decision, namely, an absence of jurisdiction in the Tribunal to make its decision: see par 476(1)(b) of the Migration Act 1958 (Cth) (“the Act”).  The particulars given in the amended application for review of that ground of review are as follows:

“The Application for a Protection Visa lodged with the Department of Immigration and Multicultural Affairs in February 1996 was invalid because, contrary to the directions on the form, it did not answer the question going to the claims for refugee status.  Accordingly, the Minister, and thus the Tribunal, were not to consider the application [s.47(3)].  In purporting to affirm the Minister’s decision, the Tribunal purported to make a decision which it had no jurisdiction to make.  The only decision open to the Tribunal was to set the Minister’s decision aside and substitute a decision that the application was invalid and neither the Minister nor the Tribunal had had any power to consider it.”

3                     I have just quoted verbatim the particulars of the ground of review mentioned above which are given in the amended application for review.  However, I should say that (curiously, since the amended application for review containing those particulars was filed concurrently with written submissions on the applicant’s behalf, which submissions were accurate in the relevant respects) the evidence established both that the incomplete protection visa application form being referred to in the particulars had not been lodged “in February 1996”, but rather on 17 December 1996, and that, rather than failing to answer one “question” on the form going to his claims for refugee status, the applicant had failed to answer a number of such questions.

4                     In addition to the facts which I have set out above, there is also one other fact which I must mention for present purposes, namely, that, on 3 March 1997, that is to say, well before the delegate’s decision of 18 November 1997, the applicant had lodged with the Minister’s Department a statement which had provided the information sought to be evoked by the questions which the applicant had not answered on the application form earlier lodged by him.

5                     It was conceded before me by the Minister that, in lodging with the Minister’s Department on 17 December 1996 the application form which he did, the applicant had, by reason of his omission to answer those questions on the application form which he had omitted to answer, not made a valid application for a protection visa.  However, the Minister submitted, the applicant had made a valid application for a protection visa on 3 March 1997, when he had lodged with the Minister’s Department the statement which provided the information sought to be evoked by the questions which the applicant had not answered on the application form earlier lodged by him.

6                     The applicant controverted the Minister’s submission which I have just mentioned.  It was the applicant’s submission that, although there was no judicial authority dealing with a case precisely like the present, I should, in reliance on cases dealing with a somewhat different situation, reject the notion that the later lodging with the Minister’s Department of the information omitted from the application form earlier lodged had led to the making of a valid application at the later time.  (The different situation was one in which the information which had been omitted from the application form earlier lodged was not lodged with the Minister’s Department before the delegate’s decision, but was instead supplied after the delegate’s decision, whether to the Minister’s Department or to the Tribunal, in the latter case while the Tribunal was already conducting a review of the delegate’s decision at the instance of the person claiming to be a refugee.)

7                     I should add immediately that, although the applicant’s position was as I have just described it, the applicant also conceded that, if at the time at which he had lodged with the Minister’s Department the information omitted from the application form which he had earlier lodged, he had also lodged with the Minister’s Department a copy of the incomplete application form, then he would have made a valid application at that time.  It can thus be seen that the applicant’s position was that the circumstance which had prevented his later lodging with the Minister’s Department of the information omitted from the application form which he had earlier lodged from amounting to the making of a valid application by him was his failure concurrently to lodge with the Minister’s Department a copy of the incomplete application form the original of which the Minister’s Department already possessed.

8                     While it was true, as the applicant submitted before me, that, at the time at which I heard argument in the present matter, there was no judicial authority dealing with a case precisely like the present, that is no longer the situation.

9                     On 10 July 2000, Hill J decided Nader v Minister for Immigration and Multicultural Affairs [2000] FCA 908 (unreported).  It is apparent from Hill J’s reasons for judgment in that matter, which dealt with a case precisely like the present, that the submissions put to Hill J by the applicant before him were in substance the same as those which were put to me by the applicant before me.  In comprehensive reasons on the issue, Hill J rejected those submissions and it would be sufficient for present purposes for me simply to adopt his Honour’s reasons for concluding that the applicant in the present case did make a valid protection visa application on 3 March 1997: see [22]-[55] and [64]-[67].

10                  Furthermore, on 14 July 2000, a Full Court of this Court decided Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906 (Spender, Marshall and Gyles JJ, unreported). That case was not one in which the missing information in the original application form had been lodged with the Minister’s Department before the delegate’s decision.  Nevertheless, both Judges in the majority in the Full Court expressed the same view as had Hill J about a case precisely like the present (although neither referred to his Honour’s reasons, obviously not being aware of them): see Spender J at [20]-[21]; and Gyles J at [72]. 

11                  In the circumstances, I will naturally resolve the present case on the basis of the authorities to which I have just referred. There are, however, two matters which I wish to mention in these reasons additional to those appearing in those paragraphs from the reasons for judgment of Hill J in Nader and of Spender and Gyles JJ in Yilmaz to which I have referred above.

12                  The first of those matters arises from the concession by the applicant that if he had, on 3 March 1997, lodged with the Minister’s Department a copy of the incomplete application form the original of which the Minister’s Department already possessed, as well as lodging his statement, then he would have made a valid application on that date.

13                  As long ago as 1628, in his Commentary Upon Littleton, which appears to have been the first book on the English law published in the English language, Sir Edward Coke commented on the following passage from Littleton’s Tenures (which passage was set out by Coke at fol 126a, having been translated by him from the law French in which it had originally been written by Littleton):

“Also, the lord may not mayme his villeine; for if he mayme his villeine, he shall of that be indicted at the king’s suit, and if he be of that attainted, he shall for that make grievous fine and ransome to the king.  But it seemeth, that the villeine shall not have by the law any appeale of mayhem against his lord; for in appeale of mayhem a man shall recover but his damages; and if the villeine in that case recover dammages [sic] against his lord, and hath thereof execution; the lord may take that [which] the villeine hath in execution from the villeine, and so the recovery is void, &c.”

That part of Coke’s commentary on the passage just quoted which is relevant for present purposes was as follows (at fol 127b; diacritical marks, ligature and footnote omitted):

“Voyde [sic], &c.” Here by (&c.) is implyed a maxime in law, Quod inutilis labor et sine fructu non est effectus legis.  And againe, Non licet, quod dispendio licet.  And, Sapiens incipit a fine; and, Lex non praecipit inutilia.  Therefore the law forbiddeth such recoveries, whose ends are vaine, chargeable, and unprofitable.”

14                  Coke did not identify the means by which, at the time at which Littleton had been writing (about 1480), the lord could have “take[n]” from the villein that which the villein had had in execution of any judgment for damages against the lord.  If it could only have been by suit, then Littleton’s conclusion that the villein’s recovery was “void, &c” had been an illustration over five hundred years ago of the doctrine of circuity of action.  Judging, however, from the fact that, in his commentary, Coke did not include among the maxims implied by Littleton’s passage the maxim “Circuitus est evitandus” (which may be rendered as “Circuity is to be avoided”), a maxim which Coke himself had earlier used in his reports (see Coulter’s Case (1599) 5 Rep 30a at 31a), I assume that the lord would not have been required to sue the villein, but would have been able to resort instead to self-help.

15                  However, whether or not Coke might have included in the passage which I have quoted from his commentary a maxim which he did not include, I am more interested for present purposes in one of the maxims which he did include, “Lex non praecipit inutilia” (which may be rendered as “The law commands not useless things”).  Over the succeeding (almost) four hundred years and in somewhat different forms, but still to the same effect, that maxim mentioned by Coke has been not infrequently applied as an aid to statutory construction.  I will mention one relatively recent example of the maxim’s use in that way.

16                  In R v Farlow [1980] 2 NSWLR 166, the Court of Criminal Appeal was concerned with a provision in the Prisons Act 1952 (NSW) which required in terms that a person sentenced to penal servitude on conviction for escaping or attempting to escape as a prisoner from lawful custody be sentenced to serve that penal servitude “after the expiration of any term of imprisonment, penal servitude or detention to which the prisoner was subject at the time of his escape or attempt to escape”.  A question arose as to whether a sentencing court was required to comply with that requirement when the prisoner concerned was already serving a life sentence.  It was held that, in such a case,  the provision should be construed as requiring instead that any sentence be imposed concurrently with the sentence already being served.  To construe it otherwise would have been to require the sentencing court to engage in a fruitless exercise, since the sentence required to be imposed was incapable of being served after the prisoner’s death.  In reaching that conclusion, Nagle CJ at CL, with whom Moffitt ACJ and Slattery J agreed, relied (at 169) on a passage from Broom’s Legal Maxims.  His Honour said:

“The learned author of Brooms’s Legal Maxims, 10th ed, at p 162, after discussing the maxim ‘Lex non cogit ad impossibilia’ (Co Litt 231b) – The law does not compel a man to do that which he cannot possibly perform – concludes, at p 169: ‘To several maxims in some measure connected with that above considered, it may, in conclusion, be proper briefly to advert.  First, it is a rule, that lex spectat naturae ordinem: Co Litt 197b, the law regards the order and course of nature,...Secondly, if [sic] is a maxim of our legal authors, as well a dictate of common sense, that the law will not itself attempt to do an act which would be vain, lex nil frustra facit, nor to enforce one which would be frivolous – lex neminem cogit ad vana seu inutilia – the law will not force anyone to do a thing vain and [sic] fruitless: Laughter’s Case, 5 Rep 21; Co Litt 127b, cited in Marson v Short, 2 Bing NC 118, at p 121; Wing Max, p 600[;] per Willes J, in Bell v Midland Ry Co, 10 CBNS 287 at p 306.”

17                  Another recent case in which the maxim which I am presently discussing was applied, although not in the context of statutory interpretation, was the decision of the Supreme Court of Canada in R v Rowbotham (1994) 90 CCC (3d) 449.  The issue in that case was whether there should be changed the common law rule which required a judge presiding at a criminal trial, who considered that the accused was entitled in law to a verdict of acquittal, to direct the jury to bring in that verdict.  The proposed change was that, in such circumstances, the judge himself or herself should simply enter such verdict.  The Supreme Court adopted the proposed change.  For the Court, Lamer CJC offered, as one of the justifications for adopting that proposed change, the avoidance of unnecessary delay and needless formality.  He said (at 456):

“Requiring the trial judge, the counsel, the court staff, the accused, and everyone else involved to wait for the jury to retire, elect a foreperson, discuss the case amongst themselves, and return with a predetermined verdict results in unnecessary delay and needless formality in the administration of justice.  This unnecessary delay and needless formality flies in the face of the legal maxim ‘lex neminem cogit ad vana seu inutilia’ — ‘the law constrains no man to do that which is vain or futile’….”

18                  To my mind, the approach encapsulated in the maxim quoted by Coke and applied in the two cases which I have just mentioned is applicable in the present circumstances.  To construe the migration legislation as the applicant contended before me that it should be construed, that is to say, as treating an application as having been validly made at the time (before the making of the primary decision) when the required information missing from the original application form is lodged with the Minister’s Department only if that missing information is accompanied by a copy of the incomplete application form the original of which the Minister’s Department already possesses, would be to construe the legislation as requiring the doing by an intending visa applicant of a useless thing.  The legislation should not be so construed, as Hill J has, in effect, already held in Nader and as Spender and Gyles JJ have, in effect, already held in Yilmaz.

19                  The second of the two matters with which I wish to deal is the discretion which this Court has under subs 481(1) of the Act to refuse to grant a remedy to an applicant, nonetheless though that applicant has established a ground of review under subs 476(1) of the Act.

20                  If I had accepted the applicant’s submission before me that the Tribunal had had no jurisdiction to make its decision affirming the delegate’s decision, then there would have been a number of powerful considerations in favour of my exercising my discretion not to grant the applicant a remedy.

21                  The applicant was legally represented on his application to the Tribunal.  He did not submit to the Tribunal that he had not had a valid application before the delegate; instead, he proceeded before the Tribunal on the basis that his application before the delegate had been a valid one and made submissions solely on the merits of that application.  The Tribunal gave him a hearing on the merits of his application and decided against him on those merits.  The applicant did not submit before me, in the alternative to his “no valid application” argument, that the Tribunal had committed some judicially-reviewable error in its disposal on the merits of his application to it.

22                  In the circumstances which I have just outlined, I would, if the issue had arisen, have been inclined in the exercise of my discretion to refuse the applicant any remedy.  The reasoning of Gyles J in Yilmaz at [95] would, I note, have supported such an approach.  (I should add that, when I put to the applicant those matters which I have just mentioned and asked him why I should not, in light of those matters, exercise my discretion against him, even if I accepted his “no valid application” argument, he had no answer to give.)

23                  In the result, of course, the question of the exercising of my discretion does not arise, for the reasons which I have already given.

24                  The application for review is dismissed with costs.

Associate:

Dated:              19 July 2000