FEDERAL COURT OF AUSTRALIA

Ullah v Minister for Immigration & Multicultural Affairs [2000] FCA 1321

MIGRATION – jurisdiction of the Refugee Review Tribunal (“the RRT”) - whether the RRT has jurisdiction to review a decision of the Minister – where the application for a protection visa before the Minister was invalid

Migration Act 1958 (Cth) ss 46, 47, 65, 69, 415 and 476(1)(e)

Migration Regulations

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

Minister for Immigration & Multicultural Affairs v “A” (1999) 168 ALR 594 not followed

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 followed

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

Collector of Customs NSW v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 followed

Calvin v Carr (1979) 22 ALR 417 followed

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

Twist v Council of the  Municipality of Randwick (1976) 136 CLR 106 cited

HABIB ULLAH v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1387 OF 1999

TAMBERLIN J

SYDNEY

15 SEPTEMBER 2000

THE COURT ORDERS THAT:

The application is dismissed with costs.

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

REASONS FOR JUDGMENT

1                     By application filed on 29 November 1999 the applicant seeks review of a decision of the Refugee Review Tribunal (“the RRT”).  The RRT had affirmed a decision of a Ministerial delegate not to grant the applicant a protection visa. The applicant alleges that the RRT made an error of law, involving an incorrect interpretation of the law, or an incorrect application of the law as applied to the facts as found within the meaning of s 476(1)(e) of the Migration Act 1958 (Cth) (“the Act”).  No particulars are given of the grounds of the review application.

2                     The legislative provisions, case law, and claims, together with the evidence, are set out in the RRT decision given on 2 November 1999 and I will not repeat them here.

background

3                     The applicant came to Australia from Bangladesh on 23 August 1997.  On 7 October 1997 he lodged an application for a protection visa but did not furnish any details of his claims as required by the Act and the Migration Regulations.  On 12 November 1997 a Ministerial delegate refused the applicant’s application for a protection visa on the ground that he was not a refugee.  The Ministerial delegate noted in her decision that the applicant had not provided in the application any claims to substantiate a fear of persecution for a Convention related reason.  The applicant then applied to the RRT for a review of the decision on 21 November 1997.  In February 1998 the applicant applied for and was granted permission to travel back to Bangladesh to visit his mother.  The applicant left Australia on 19 February 1998 and returned on 19 March 1998.  Then on 27 August 1999 he furnished the RRT with documents in support of his application for review.  These included a covering letter; a Statutory Declaration dated 26 August 1999; a letter dated 23 September 1997 from an Advocate in Dhaka named Mb Mesbah Uddin Khan; and, a Charge Sheet dated 16 September 1997. 

4                     In his Statutory Declaration the applicant claimed that in 1989 he had joined the student wing of the Bangladesh Nationalist Party (“BNP”) and that he was elected to the position of General Secretary and then President of the student wing. The applicant claimed that after leaving school he worked in Germany between 1992 and 1996, and upon his return to Bangladesh he first became the Organising Secretary and later the General Secretary of his local BNP committee.  He claimed to have been persecuted on the basis of his involvement with the BNP.

RRT Decision

5                     The RRT rejected the claims that the applicant was a BNP member targeted by the Awami League or that a false criminal case had been lodged against him forcing him to flee Bangladesh.  The RRT did not accept the applicant as a credible witness.  This conclusion was based on several factors.  The first relates to the activities of another man (Mr Shariat Ullah) who:

·        had lodged an identical application for a protection visa;

·        was from the same area of Dhaka as the applicant, and was allegedly in the same branch of the BNP;

·        had been charged in the same Charge Sheet in respect of violence with weapons;

·        left Bangladesh on the same date and travelled on the same flight to Australia and the applicant; and,

·        resided in the same residence for two years and employed the same solicitor as the applicant. 

The applicant was hesitant when questioned by the RRT about this, and the second man claimed not to know the applicant.  A second matter referred to was the applicant’s delay in asserting his claims notwithstanding that he had legal assistance and that he was found to be educated and able to speak and read English.  Thirdly, the decision-maker, after some questioning of the applicant, concluded that he was unaware of recent political history concerning BNP activity in Bangladesh, particularly the reasons for the June 1996 election.  He considered this was indicative of the applicant not being a member of the BNP and not being involved in politics. Also the decision-maker had regard to the demeanour of the applicant and to independent country information relating to Bangladesh, especially material concerning document fraud and the production of fabricated documents.  The decision-maker did not accept any of the applicant’s claims in relation to the BNP or the Awami League, or as to those bodies being interested in the applicant or his being wanted by the police.  The decision-maker also noted that both the applicant and one of his brothers were named in the Charge Sheet tendered by the applicant but that his brother was still at home.  He had not been arrested by police and continued to work in his father’s business.  The decision-maker considered that neither the applicant nor his brother were wanted by the authorities. There was a positive finding that the applicant had manufactured a set of claims and documents in the hope of advancing his protection visa application.  In my view, on the material before the RRT, the conclusion was open that the applicant did not have a well-founded fear of persecution on a Convention ground.

NON-APPEARANCE

6                     When the matter came on for hearing before me the applicant did not appear, although four type-written pages of submissions had been forwarded to the Court two days prior to the hearing date.  I am satisfied that the applicant was aware of the hearing date.  No message was received from him to confirm his absence and I proceeded to hear the matter and consider his submissions and the RRT decision in his absence.

7                     The submissions simply reassert the claims made and rejected by the RRT.  They set out the circumstances of the decision and the law which the applicant claims to be relevant. There is nothing in the written submissions of the applicant which persuades me that any reviewable error has been made in relation to the findings of the RRT.  Apart from the legal point set out below no matter of substance was raised.

jurisdiction of the RRT

8                     In his submissions the applicant raised a legal issue as to the jurisdiction of the RRT.  The submission is that the RRT had no jurisdiction to review the delegate’s decision because the original application for a protection visa was incomplete and invalid because it did not satisfy the legislative requirements: see ss 45, 46, 47, 65 and 69 of the Act and regs 2.07, 866.21 and 866.22 of the Migration Regulations.  Accordingly, so it is said, the Court should set aside the decision made by the RRT as a nullity, and the Minister should reconsider the matter in accordance with law.  On this basis the applicant submits that both the decision made by the delegate and by the RRT involved an error of law which amounted to an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the decision-maker.

9                     The relevant provisions of the Act are:

“Subdivision AA – Application for visas

47        Consideration of valid visa application

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

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

            …

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

            …

(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.

Subdivision AC – Grant of visas

65        Decision to grant or refuse to grant visa

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

            (a)        if satisfied that [the relevant criteria are met]:

            …

                        is to grant the visa; or

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

69        Effect of compliance or non-compliance

     (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.”  (Emphasis added)

10                  The deficiency in the application which was said to exist in the present case was that in response to a question in the prescribed application form as to why he left Bangladesh, the applicant answered by saying:

“Please see my statutory declaration when provided”

11                  No such declaration or particulars were provided before the decision of the delegate was made on 12 November 1997.  Accordingly, at that time, there was no “valid application” in respect of the applicant.  On 27 August 1999, about twenty-one months later, in relation to the review by the RRT, a Statutory Declaration and other documents in support of the applicant's case were forwarded to the RRT.  The applicant sought to rely on his own failure to give the statutory declaration before the delegate’s decision was made as a ground of invalidity with respect to both the delegate’s decision and the RRT’s decision.

12                  In his submissions, the applicant cited the recent decision of the Full Federal Court in Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906. That decision is directly contrary to the proposition advanced by the applicant.  In that case a majority (Spender and Gyles JJ, Marshall J dissenting) of the Full Court held that a failure to make a valid application for a visa to the Department, because information in the application form was not provided before the decision of the delegate was made, was not a basis for finding that the RRT had no jurisdiction or that there was therefore no reviewable decision before the RRT.  The majority declined to follow earlier expressions of opinion by two members of a Full Court in Minister for Immigration & Multicultural Affairs v “A” (1999) 168 ALR 594.  In that case Merkel and Finkelstein JJ expressed the view that where an invalid application has been made to the Minister, which remained invalid at the time of the decision because of the lack of information required by the Act, the RRT lacked jurisdiction to review the decisions in fact made by the delegate and therefore the RRT decision should be set aside.  I note than an application for special leave to appeal Yilmaz has been filed in the High Court but that this has not been decided.

13                  In my view, the reasoning of Spender and Gyles JJ in Yilmaz correctly sets out the law as it applies to the submission in its case.  My reasons for preferring the majority reasoning and conclusion in Yilmaz to that in the case of “A” can be briefly summarised as follows:

(a)        The question of whether an act done in breach of legislation is ineffective for all purposes is to be sought in the language used.  In the present case there is no express provision that an application for a visa which is not made in conformity with a requirement of a regulation is a nullity for all purposes including that of administrative or judicial review.  Nor is there any basis for implying such a consequence.  Assuming the application to be in breach of the Act it does not follow that the decision is a nullity for all purposes and therefore cannot be the subject of administrative review: cf. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 391-3.

(b)        Section 69(1) of the Act expressly provides that non-compliance by the Minister with subdivisions AA and AB which include ss 45, 46 and 47, does not mean that the decision on the application is not a valid decision but only means that the decision might have been wrong and might be set aside on review.  This section applies in the present circumstances.  I agree with the observations of Finn J in Phanouvong v Minister for Immigration and Multicultural Affairs [1999] FCA 1489. 

The present applicant’s case is ultimately grounded on the proposition that ss 45, 46 and 47 of the Act have not been complied with and so no valid application exists.  Accordingly, so the argument goes, no decision under s 65 could be made because the Minister could never consider a valid application, as required by the opening words of s 65.  On this argument s 69 could not cure this defect, because s 65 is not a provision of subdivision AA or AB. 

In my view s 69 is specifically directed to the present circumstances by reason of its reference to “a decision to grant or to refuse to grant the visa”.  This is the decision made under s 65.  The introductory words of s 65(1) do not impose an independent requirement that the application must be valid but rather assume that there has been an application to the Minister that has been considered pursuant to s 47.  The words are descriptive of the subject matter of the power and not a prescriptive condition precedent.  They advert to a sequence of events and designate the stage at which the Minister is to make his decision.  After referring to the sequence ss 65(1) then ss 65(1) imposes a duty on the Minister to deal with the application in one of two ways: that is, by granting or refusing a visa.  There can be no “conflict” between s 65 and s 69, as suggested in the case of “A”, because the latter section specifically contemplates a grant or refusal under s 65 and provides in substance that such a decision can be reviewed if either party wishes to make such an application.

(c)        Even assuming the decision of the delegate to be “invalid”, well-settled principles of judicial review of administrative decisions establish that a reviewing body can have jurisdiction to treat the decision as one in fact made and reviewable regardless of whether or not it is a legally effective decision even without any express provision such as s 69: see Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1997) 24 ALR 307 at 315 and 334; Calvin v Carr (1979) 22 ALR 417 at 425-427.  These decisions illustrates that an administrative decision which is legally ineffective may be the subject of an appeal: see also Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 at 219-220.

(d)        In addition, s 415 of the Act, which is concerned with the powers of the RRT, provides that the RRT may for the purposes of the review of an RRT reviewable decision exercise all the powers and discretions that are conferred by the Act on the person who made the decision, in the present case the Ministerial delegate.  The effect of this is that the RRT was empowered to receive the supplementary material  proffered by the applicant in 1999 which cured any invalidating omission in the application and allowed the RRT to validly exercise its powers and make a legally operative decision.  In this connection I consider that the High Court decision in Twist v Council of the Municipality of Randwick (1976) 136 CLR 106 is in broad terms analogous.  In that case the failure by Council to afford natural justice in relation to a demolition order which might otherwise have rendered the decision invalid was held to have been cured by the plaintiff having an opportunity to be heard on an appeal by way of re-hearing.

(e)        The conclusion reached in “A” leads to a curious result. The present case illustrates this.  The applicant lodged an application but deferred answering several key questions by stating that a declaration would be provided.  He did not provide any declaration before the date of the delegate’s decision on 12 November 1997 which was two months after the application for a protection visa.  The applicant was not satisfied with the delegate’s decision and sought review from the RRT.  He was not satisfied with that decision and seeks review of the RRT decision.  At this point of time he submits that all previous decisions were null and void for all purposes including review.   This is in circumstances where the nullity is said to flow from his omission to supply further evidence within the two month period before the delegate’s decision, which he had foreshadowed in his application.

14                  I am of opinion that the decision made by the RRT, in the present case, was made within jurisdiction and could be reviewed.

15                  In my view, the reasons of the RRT do not disclose any reviewable error.  I dismiss the application with costs.

Associate:

Dated:              15 September 2000