FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v Li [2000] FCA 1456

IMMIGRATION – refugees – incomplete application for protection visa refers to statement forthcoming – statement not supplied before application is refused by delegate – information subsequently provided to Refugee Review Tribunal at its address – whether compliance with reg 2.10(1)(b) of the Migration Regulations – effect of non-compliance.

Migration Act 1958 (Cth), ss 45, 46, 47(1), 47(3), 47(4), 48A, 65(1), 69, 411, 415(1), 418(2), 418(3), 476.

Migration Regulations (Cth), reg 1.18, 2.07(1), 2.07(3), 2.10(1)(b).

Explanatory Memorandum, Migration Reform Bill 1992 (Cth).

Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435, cited.

Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906, distinguished.

Transurban Citylink Ltd v Allan (1999) 168 ALR 687, cited.

Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845, cited.

Wimalaratne v Minister for Immigration and Multicultural Affairs [2000] FCA 964, cited.

Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245, cited.

Nader v Minister for Immigration and Multicultural Affairs [2000] FCA 908, discussed.

Ramos v Minister for Immigration and Multicultural Affairs (1999) 91 FCR 329, cited.

Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 169 ALR 515, cited.

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v WEN HAN LI

V 246 of 2000

RYAN, SACKVILLE & EMMETT JJ

SYDNEY (HEARD IN MELBOURNE)

18 OCTOBER 2000

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v PRABIR KUNDU

N 557 of 2000

RYAN, SACKVILLE & EMMETT JJ

SYDNEY

18 OCTOBER 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The respondent file and serve submissions as to the appropriate orders for disposing of the appeal (including costs) on or before 1 November 2000.

2.                  The appellant file and serve submissions as to the appropriate orders for disposing of the appeal (including costs) on or before 15 November 2000.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.      The respondent file and serve submissions as to the appropriate orders for disposing of the appeal (including costs) on or before 1 November 2000.

2.      The appellant file and serve submissions as to the appropriate orders for disposing of the appeal (including costs) on or before 15 November 2000.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

THE APPEALS

1                     Two appeals that were thought to raise similar issues were heard by the same Full Court Bench, although not at the same time. 

2                     The appeals illustrate the practical difficulties created by a statutory scheme that requires visa applicants to comply with strict formal requirements. These cases, like others recently decided by this Court, have their genesis in the failure of the Minister’s delegates to adhere to the statutory instruction not to consider “an application that is not a valid application” (Migration Act 1958 (Cth) (“Migration Act”), s 47(3)). The failure by the delegates reflects the fact that the statutory scheme, although designed to achieve “simplicity, clarity, certainty and fairness” (Explanatory Memorandum, Migration Reform Bill 1992  (Cth), at par 4), sets many traps for the unwary.  It is, of course, a matter for Parliament as to whether legislation should insist on strict compliance with formal requirements. These appeals demonstrate, however, that legislation adopting that course inevitably produces unforeseen and unintended consequences. 

3                     In the first appeal, Minister for Immigration and Multicultural Affairs v Wen Han Li, the appellant (“the Minister”) appeals against orders made by Heerey J: Li Wen Han v Minister for Immigration and Multicultural Affairs [2000] FCA 421. His Honour made orders setting aside a decision of the Refugee Review Tribunal (“RRT”), affirming a decision of the Minister’s delegate not to grant the respondent a protection visa.  Heerey J concluded that the respondent had not lodged a completed application form and therefore had not made a valid application for a protection visa. In these circumstances, he took the view that the RRT had no jurisdiction to consider the respondent’s “application” on the merits and therefore had no jurisdiction to affirm the delegate’s decision. 

4                     In the second appeal, Minister for Immigration and Multicultural Affairs v Kundu, the Minister appeals against a judgment of Lindgren J: Kundu v Minister for Immigration and Multicultural Affairs [2000] FCA 560. His Honour also made orders setting aside a decision of the RRT, which had affirmed a decision of the Minister’s delegate refusing to grant the respondent a protection visa. Lindgren J, like Heerey J, concluded that the respondent had not lodged a valid application for a protection visa and that the RRT had power neither to grant the visa nor to affirm the delegate’s decision to refuse to grant the visa. 

5                     As will become apparent, the course of argument in each appeal was by no means smooth.  During the hearing of the appeal in Kundu, a new issue was raised that required the parties in both appeals to be given an opportunity to make additional written submissions. It is those submissions that are critical to the outcome of the appeals. 

THE COURSE OF EVENTS IN WEN HAN LI

6                     Wen Han Li (“Mr Li”) is a citizen of the People’s Republic of China, born in 1961.  He entered Australia on 9 December 1995 as the holder of a bridging visa and was subsequently granted a temporary residence sub-class 413 (executive) visa on 21 December 1995.  His wife and child entered Australia on 1 June 1996. Mr Li’s sub-class 413 visa was cancelled when the Department received information that he was no longer employed by the company that had arranged his position in Australia.

7                     On 4 July 1997, Mr Li lodged a form headed “Application for a Protection Visa (866)” (“Form 866”) with the Melbourne office of the Department of Immigration and Multicultural Affairs (“the Department”), located at Level 25, 2 Lonsdale Street, Melbourne.  Mr Li was assisted by a migration agent in preparing the Form 866 for lodgement. Heerey J assumed that the information in English provided on the form had been written by the agent, on Mr Li’s instructions. Mr Li paid the visa application charge of thirty dollars and a receipt in respect of this payment was duly issued. 

8                     Part C of the printed Form 866 commenced with the following direction:

“You must answer ALL questions.  If any question is not applicable, write ‘N/A’.
 If you need more space to answer any questions, attach a sheet of paper giving the required details and include the part (Part C) and question number to which the information refers.”

In response to a series of questions on the form, Mr Li provided details as to a number of matters, including his birth, marriage, education, travel to Australia and past employment. 

9                     A section of the Form 866 was headed “Your reasons for claiming to be a refugee”.  At this point, the Form 866 included the following directions: 

“You should answer all the following questions in your own words. You should tell us below everything about why you think you are a refugee. In answering the questions below, you should tell us if you think any events you refer to are because of:

·        your race

·        your religion

·        your nationality

·        your membership of a particular social group

·        your political opinion

·        other reasons 

Your claims will be assessed against a definition of a refugee set out in the United Nations Convention.  The definition is provided on page 1 of Part A of this form.” 

The Form 866 contained this printed statement: 

“I am seeking protection in Australia so that I do not have to go back to:”

with a space left for an applicant to complete it. Mr Li’s Form 866 was completed in handwriting “P R China”. The Form 866 then asked the following question:

“Why did you leave that country?  If you need more space to answer, insert extra pages as required.”

The handwritten response on Mr Li’s Form 866 was as follows:

“SEE ATTACHMENT. 

Statement will be forwarded later.”

Later questions on the Form 866 asked a series of questions, as follows: 

“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?” 

Each question had the following notation in lieu of an answer:

“SEE ATTACHMENT” 

In fact, no attachment accompanied the Form 866 and no further information was supplied by or on behalf of Mr Li before  the delegate’s decision was made. 

10                  On 11 August 1997, the Minister’s delegate purported to refuse Mr Li’s application for a grant of a protection visa.  The delegate noted that no submission had been received from Mr Li and that there were “no claims to be considered in this case”.  The delegate did not advert to the requirements of s 47(3) of the Migration Act.

11                  On 1 September 1997, Mr Li lodged an application with the RRT seeking review of the delegate’s decision.  The application was lodged with the RRT at its address, Level 2, 628 Bourke Street, Melbourne. It was common ground that the Department had not, at any material time, occupied this address. 

12                  On 8 September 1997, the Registrar of the RRT gave the Secretary of the Department a copy of the application for review and requested the information referred to in s 418(2) and (3) of the Migration Act.  In response to this request, the Department sent its file to the RRT on 11 September 1997. 

13                  On 31 October 1997, Mr Li’s solicitors sent a letter to the RRT addressed (incorrectly) to 624 Bourke Street, Melbourne.  It is common ground that the letter reached the RRT at its correct address. The letter enclosed a lengthy submission in the Chinese language, accompanied by an English translation. 

14                  The English version of the submission was headed “the history and experience and the truth" and comprised some 24 single spaced typed pages. Heerey J summarised the content of the written submission as follows (at [11]):

“The [respondent] claim[ed] that his parents were branded as a reactionary family during the Cultural Revolution and that he was as a result denounced at school and not permitted to join the Communist Youth League.  He aligned himself with a group that opposed the production of goods by political prisoners and which secretly gathered evidence of the practice in order to bring international attention to it.  In June 1992 he was arrested and sentenced to four years imprisonment for disclosure of a State secret.  He was seriously mistreated while in prison but in May 1993 he arranged a release on bail on medical grounds.  He left China while still on bail.  He claim[ed] that he held views that were opposed to those of the Chinese Communist Party and because he had a low profile he lacked the protection of the international community.  He claim[ed] that a former lover in Australia had falsely accused him of corporate fraud and would probably make the same allegations in China if he is returned there.”

15                  Mr Li’s submission to the RRT was not expressed to be in response to the questions on Form 866 that had been left unanswered by him at the time of lodgement. Nor did his submission to the RRT specifically address those questions. It is fair to say, however, that the information provided by the respondent to the RRT made it clear enough what his answers to those questions would have been. 

16                  On 16 November 1998, the RRT made its decision affirming the delegate’s decision not to grant Mr Li a protection visa.  The RRT dealt with Mr Li’s case on the merits and did not direct attention to the question of whether he had ever lodged a valid application for a visa. The RRT found that Mr Li had manufactured his claims regarding imprisonment and maltreatment in China and that the documentation lodged in support of his claim was not genuine. The RRT considered that the fact that Mr Li had been granted permission to depart China indicated that he was of no interest to the authorities there. The RRT also concluded that any prosecution resulting from allegations made by Mr Li’s former lover would not constitute persecution for a Convention reason.  Accordingly, the RRT was not satisfied that the respondent had a well-founded fear of persecution for any of the reasons referred to in Art 1A(2) of the Convention Relating to the Status of Refugees (“the Convention”). 

THE COURSE OF EVENTS IN KUNDU

17                  Prabir Kundu (“Mr Kundu”) arrived in Australia on 1 June 1998. On 14 July 1998, he lodged a Form 866 with the Minister. The Form 866 that was lodged on behalf of Mr Kundu was in the approved form.

18                  Mr Kundu’s Form 866 was in the same form as Mr Li’s Form 866. The relevant spaces were completed in the following manner:

“I am seeking protection in Australia so that I do not have to go back to:

            India

Why did you leave that country?

            Please see my submission which will be provided on later date.

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

            Please see my submission.

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

            Please see my submission.

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

            Please see my submission.

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

            Please see my submission.”

19                  On 14 August 1998, without any further communication to Mr Kundu, the Minister’s delegate made a decision refusing to grant a visa. On 16 September 1998, Mr Kundu lodged an application with the RRT seeking review of the delegate’s decision.

20                  No “submission” accompanied the Form 866 lodged by Mr Kundu and no “submission” was ever provided to any office of the Department. However, on 27 August 1999, a migration agent wrote to the RRT enclosing a statutory declaration by Mr Kundu. Neither the letter nor the statutory declaration referred to the unanswered questions in the Form 866. However, the contents of the declaration give a fair indication of how those questions would have been answered.

21                  The statutory declaration comprised eleven paragraphs, including the following:

“2.       At the time of the lodging my protection visa application, I mentioned my fears of persecution in India. However, I did not manage to submit the necessary documentation to establish my claim, and the extent of my fears of persecution, because the members of my family faced many difficulties in obtaining those documents from the relevant authorities in India. However, my family members and friends are still trying to gain access to these documents, and I expect them to forward these documents to me in Australia as soon as they can.”

22                  The statutory declaration went on to refer to:

·        Mr Kundu’s political activities in India;

·        threats by “the BJP, as well as the CPIM of West Bengal” to kill Mr Kundu;

·        attacks on Mr Kundu by “these opponent political groups”;

·        Mr Kundu’s participation in demonstrations against the BJP and CPIM in West Bengal;

·        the lodging of a false and fabricated case against Mr Kundu by the West Bengal police as well as members of the CPIM in West Bengal.

23                  Mr Kundu’s statutory declaration also said this:

“9.       As a result, I found that it was impossible for me to stay in India, as my life was in certain danger there. Accordingly, I managed to escape from India with the help of my family members and friends, in order to save my life from possible persecution”.

…

11.       Therefore, I request the Honourable Refugee Tribunal to consider my application sympathetically, as I am certainly facing a vigorous punishment upon return to India because of my political activities.”

24                  The RRT conducted a hearing on 31 August 1999. In its reasons, the RRT referred to the contents of Mr Kundu’s statutory declaration and recorded Mr Kundu’s claim that the statutory declaration did not accurately state his claims in certain respects. The RRT did not find credible Mr Kundu’s explanation for signing an allegedly inaccurate statement and did not accept that he had a well-founded fear of persecution for a Convention reason. Accordingly, on 30 September 1999, the RRT affirmed the delegate’s decision.

THE LEGISLATIVE SCHEME

25                  The following account concerns the legislative scheme as it stood at the relevant times, that is when the delegates and the RRT made their decisions.

THE MIGRATION ACT

26                  Sections 45-47 of the Migration Act, which are within Subdivision AA of Division 3, deal with applications for visas:

“45(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

(c)               an application in specified circumstances for a visa of a specified class.

…

46(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)….

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

(c)               ….

(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.”

27                  Section 48A prevents a non-citizen who has unsuccessfully applied for a protection visa from making a further application. Section 48A(1) provides that:

“… a non-citizen who, while in the migration zone, has made:

(a)               an application for a protection visa, where  the grant of the visa has been refused (whether or not the application has been finally determined); or

(b)               …

may not make a further application for a protection visa while in the migration zone.”

28                  Section 65(1)(a) provides that after considering a valid application for a visa, the Minister, if satisfied that the criteria for the visa prescribed by the Migration Act or the regulations have been satisfied, is to grant the visa. If the Minister is not so satisfied, he or she is to refuse to grant a visa: s 65(1)(b).

29                  Section 69 is headed “Effect of compliance or non-compliance”. Section 69(1) is as follows:

“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 a 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.”

30                  Section 415 sets out the powers of the RRT when reviewing a “RRT-reviewable decision”. Section 415(1) provides as follows:

“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.”

THE MIGRATION REGULATIONS

31                  Regulation 1.18 of the Migration Regulations provides that the Minister may approve forms for use in making an application for a visa. It was common ground in each of the appeals that Form 866 had been approved by the Minister pursuant to reg 1.18. 

32                  Regulation 2.07 is as follows:

“(1)     For the purposes of sections 45 and 46 of the Act (dealing with application [sic] 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 I:

(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;

(c)               other matters relating to the application.

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

33                  Regulation 2.10 relevantly provides as follows:

“(1)     An application for a visa must be made:

(a)        in the case of an application to be made outside Australia:

…

(b)        in the case of an application to be made in Australia … at any office of Immigration in Australia.”

The term “Immigration” is defined by reg 1.03 to mean “the Department of Immigration and Multicultural Affairs”.

THE JUDGMENTS AT FIRST INSTANCE

WEN HAN LI

34                  Mr Li sought a review of the RRT’s decision on the ground, inter alia, that the decision had not been authorised by the Migration Act (see s 476(1)(c)). The particulars provided on behalf of Mr Li established that his principal contention was that the RRT lacked jurisdiction to review the delegate’s decision because the application lodged on 4 July 1997 had not complied with the mandatory requirements of the Migration Act and the Migration Regulations. In particular, so it was argued, the application had not complied with the mandatory requirements of reg 2.07(3), in that the respondent had not completed the approved form in accordance with the directions contained therein. 

35                  Mr Li submitted to Heerey J that the effect of ss 46(1) and 47(3) of the Migration Act was that the application had been invalid and should not have been considered by the Minister. It followed, according to Mr Li, that the RRT had erroneously embarked on a review of the merits of a non-existent application. Accordingly, so it was argued, the RRT’s decision should be set aside, notwithstanding that it was the respondent who had invoked the jurisdiction of the RRT.

36                  Heerey J, in substance, accepted Mr Li’s submissions. His Honour reasoned as follows: 

·        The requirement specified in reg 2.07(3), that an applicant complete an approved form in accordance with any directions contained therein, prescribed “the way for making” an application within s 45(2) of the Migration Act.

·        Since Mr Li’s application, as originally lodged, had not been completed in accordance with the directions, it had not been made in the way required by s 45(2) of the Migration Act.  No issue arose in this case of substantial compliance, since the key questions on Form 866 had simply been unanswered. 

·        The effect of s 46(1)(b) of the Migration Act was that the “application” lodged on behalf of Mr Li was not valid. 

·        The purported decision of the delegate was also invalid, since the Minister had no power to consider, or to grant or refuse to grant, an application that was not a valid application (Migration Act, ss 47(3), 65). 

·        Even so, the purported decision of the delegate was an “RRT-reviewable decision” for the purposes of s 411(1)(c) of the Migration Act. This conclusion followed from the terms of s 476(1)(b) and (c), which conferred power on the Court to review purported decisions made without jurisdiction, or which were not authorised by the Migration Act or the Migration Regulations. If an allegedly invalid decision of a delegate were treated as an RRT-reviewable decision, the Court, on an application for judicial review, could decide whether the RRT was correct in its decision as to the invalidity or otherwise of the primary decision. 

·        His Honour doubted that it was correct to suggest (as Merkel J had in Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435, at 446) that the provision of information by an applicant after the lodgement of an incomplete Form 866 could overcome the initial invalidity caused by the applicant’s failure to answer key questions. In any event, Mr Li had provided no further information prior to the delegate’s decision. Therefore that decision was invalid and the RRT should have so found. 

·        It was not open to the RRT to treat the invalid initial application as having been “fixed up” by the supply of information after the delegate had made the purported decision. The RRT was a reviewing body and was not intended to have a first instance jurisdiction.  While the RRT could exercise all the powers and discretions conferred by the Migration Act on the person who made the RRT-reviewable decision (s 415(1)), the Minister had no power to treat a non-complying “application” as remedied by some subsequent document.  Therefore, there was no such power for the RRT to exercise pursuant to s 415(1) of the Migration Act.

37                  Heerey J observed that Mr Li had not relied on s 476(1)(b) of the Migration Act, which provides for review of a judicially-reviewable decision on the ground that the person who had purported to make the decision did not have jurisdiction to make it. However, his Honour considered that Mr Li was entitled to an order under s 476(1)(c) on the ground that the RRT’s decision had not been authorised by the Migration Act. 

38                  Heerey J noted that Mr Li had sought orders setting aside the RRT’s decision under s 481(1)(a) of the Migration Act and remitting the matter to a differently constituted RRT, pursuant to s 481(1)(b). His Honour considered the latter order was “obviously inappropriate”, since no valid decision could be made by the RRT in respect of the “application”.  Although the point had not been argued, he said that it seemed to follow that Mr Li was not prevented by s 48A of the Migration Act from making a fresh application for a protection visa. In the result, his Honour made an order setting aside the decision of the RRT.

KUNDU

39                  On 27 October 1999, Mr Kundu filed his application to the Court for an order of review of the decision of the RRT in his case. It was common ground that at no time prior to the delegate’s decision had a valid application been lodged by Mr Kundu. Nevertheless, before Lindgren J, the Minister relied on s 415(1) of the Act as empowering the RRT, in effect, to grant or to refuse to grant the visa.

40                  His Honour concluded that the powers and discretions conferred on the RRT by s 415(1) are only those powers and discretions that the Act conferred on the delegate. The delegate did not have a power or discretion to grant or to refuse to grant a visa because of s 47(3). Section 415(1) conferred on the RRT all the powers and discretions conferred by the Act on the 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. As the Minister’s delegate was not in fact dealing with a valid application for a visa, the RRT did not have power to refuse to grant the visa or to affirm the delegate’s decision refusing to grant it. His Honour held that the only decision that the RRT could have made was to set aside the delegate’s decision. He made the orders referred to earlier (at [4] above). 

THE COURSE OF THE APPEALS

The initial submissions

41                  To understand the critical issues that emerged on the appeals it is necessary to explain the course of argument. The starting point is the Minister’s argument advanced in support of the appeal in Wen Han Li. This argument contained three steps. 

42                  The first was that Heerey J had erred in holding that the “application” lodged on 4 July 1997 was incurably bad. Mr Tracey QC, who appeared with Mr Gray for the Minister in Wen Han Li, submitted that the defect in the initial application could have been remedied, had Mr Li supplied the missing answers to the questions (or information effectively answering them) prior to the delegate’s decision. He contended that this proposition had been authoritatively established by the majority decision in Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906, a case decided after Heerey J delivered his judgment: see at [19]-[20], per Spender J, at [72], per Gyles J; contra at [51]–[52], per Marshall J. 

43                  Mr Tracey next submitted that the RRT had jurisdiction to review the delegate’s decision in respect of the invalid application, notwithstanding that the decision had been made in contravention of the express terms of s 47(3) of the Migration Act. He contended that Yilmaz had held that where the Minister’s delegate, as a matter of fact, had refused to grant a protection visa, the decision constituted a “RRT-reviewable decision” within s 411(1)(c) of the Migration Act. In the alternative, he argued that it followed from Yilmaz that s 69(1) of the Migration Act preserved the validity of the delegate’s decision at least for the purpose of making it subject to review by the RRT. 

44                  The third step in the Minister’s argument was that s 415(1) of the Migration Act conferred on the RRT all the powers and discretions that the delegate would have been able to exercise, had the delegate made a decision at the time the RRT itself came to consider the matter.  On this view, s 415(1) did not merely confer on the RRT the powers the delegate had at the time of the original decision. Rather, it had an ambulatory operation. This allowed the RRT to take account of information supplied by an applicant after the delegate’s decision but before the RRT’s own decision. It followed that the RRT had been entitled to proceed on the basis that a valid application had been lodged once Mr Li filed his written submissions with the RRT on 31 October 1997.  According to Mr Tracey, the reasoning of the majority in Yilmaz supported this conclusion. 

45                  In the course of oral argument on the appeal in Wen Han Li, it became clear that Ms Mortimer, who appeared with Ms Germov for the respondent, did not dispute the first two steps in the Minister’s contentions.  Nor did she dispute that the third step in the Minister’s argument was squarely supported by the majority decision in Yilmaz.  She therefore accepted that Yilmaz should be followed unless it could be shown to be “clearly erroneous”: Transurban Citylink Ltd v Allan (1999) 168 ALR 687 (FC), at 694; Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845.

46                  Ms Mortimer requested further time to prepare written submissions contending that the decision in Yilmaz should not be followed, in so far as it concerned the construction of s 415 (1) of the Migration Act.  As there was no opposition to this course, the parties were given leave to file supplementary written submissions. 

The supplementary submissions IN WEN HAN LI

47                  The supplementary written submissions addressed the correctness of the decision in Yilmaz in relation to the construction of s 415(1) of the Migration Act.  The submissions made two assumptions:

·        first, that Mr Li’s initial application to the Department, lodged on 4 July 1997, was invalid by reason of his failure to answer the key questions as required by reg 2.07(3); and

·        secondly, that Mr Li’s written submissions to the RRT, when read with the initial invalid application, perfected his application or otherwise constituted a valid application. 

48                  Neither set of submissions adverted to the fact that Mr Li’s submission of 31 October 1997 had not been lodged with or sent to the Department, but had been forwarded to the RRT in support of his application to review the delegate’s decision.  Nor did the submissions refer, except in passing, to reg 2.10(1)(b) of the Migration Regulations which required visa applications to be lodged at “any office of Immigration in Australia”. 

The reg 2.10(1)(b) issue

49                  After the parties to the appeal in Wen Han Li had filed their supplementary written submissions, the same Full Court heard argument on the appeal in Kundu. Not surprisingly, given the similarity of the facts, in Kundu, Mr Kundu also argued that Yilmaz had been wrongly decided and should not be followed. 

50                  During oral argument on the appeal in Kundu, counsel for Mr Kundu, Ms Abadee, put forward a submission neither foreshadowed in her written submissions nor addressed by the parties to the appeal in Wen Han Li. Ms Abadee submitted that the additional information provided by the respondent in Kundu to the RRT was incapable of remedying the absence of critical information in the original application lodged with the Department. Ms Abadee pointed out that the additional information (as in Wen Han Li) had not been provided to the Department and that therefore there had been a failure to comply with reg 2.10(1)(b).  Accordingly, so she argued, the respondent had never lodged a valid application for a protection visa and the RRT’s decision (which, like the RRT’s decision in Wen Han Li, purported to reject Mr Kundu’s application for review on the merits) had to be set aside. 

51                  The parties to both appeals were given leave to file yet further written submissions, in order to address the reg 2.10(1)(b) issue.  Counsel for the Minister in each of the appeals sensibly coordinated their written submissions, so that they were very similar. The submissions on behalf of the respondent in each appeal were also similar, although the respondent in Kundu put an alternative submission not advanced by the respondent in Wen Han Li.

52                  The respondents’ submissions were to the following effect:

·        Neither respondent had completed the Form 866 in accordance with the directions contained therein. The failure to do so contravened reg 2.07(3) and constituted a failure to make the application in the way prescribed for making an application by s 45(2)(a) of the Migration Act.  Section 46(1)(b) of the Migration Act therefore rendered the incomplete initial application invalid. 

·        Regulation 2.10(1)(b), like reg 2.07(3), prescribed a “way for making … an application in specified circumstances” within s 45(2)(a).  Thus, if an application were not made at an office of the Immigration in Australia, as required by reg 2.10(1)(b), it was not made in the way prescribed by s 45(2)(a) for making an application. It followed that s 46(1)(b) rendered invalid an application made otherwise than at an office of Immigration in Australia.

·        The additional information provided by each respondent was not, on any view, given at or provided to an office of Immigration. The additional information was therefore incapable of curing any deficiency that had rendered the initial application invalid. Accordingly, neither respondent had ever lodged a valid application. 

·        In the absence of a valid application ever having been made, s 415(1) of the Migration Act, whatever its proper construction, could not have authorised the RRT to consider the respondents’ “applications” on their merits. 

53                  Mr Kundufurther submitted that, even if reg 2.10(1)(b) had not prescribed a “way for making … an application in specified circumstances” within s 45(2)(a), it nonetheless imposed a mandatory requirement for the making of a valid application. In the absence of compliance with that mandatory requirement, there could be no valid application.  Accordingly, independently of s 45(2)(a), Mr Kundu (so it was argued) had never lodged a valid application.

54                  In response the Minister submitted that reg 2.10(1)(b) had not prescribed “the way for making … an application” within s 45(2) of the Migration Act. The Minister’s submissions relied on the fact that, at the material times, reg 2.07(1) had been prefaced with the words “[f]or the purpose of sections 45 and 46 of the Act (dealing with the application for a visa)” and that reg 2.10 contained no similar prefatory words. It was submitted that the absence of these prefatory words clearly indicated that reg 2.10 was not to be regarded as a regulation prescribing “the way for making … an application” for a visa.  Accordingly, so it was argued, the foundation for the respondents’ argument fell away. 

55                  The Minister contended that, in any event, the only consequence of the respondents’ failure to complete their initial application forms in accordance with the directions was that the Minister was bound not to consider them. The applications themselves were not nullities.  To construe the legislation otherwise would be contrary to the maxim “lex non praecipit inutilia” (“the law commands not useless things”): see Wimalaratne v Minister for Immigration and Multicultural Affairs [2000] FCA964, at [15],per Katz J. It followed, so the argument ran, that each of the respondents, by lodging an incomplete Form 866, made an application at that time, thereby complying with reg 2.10(1)(b). 

56                  The Minister submitted, in the alternative, that the supply of the additional information to the RRT on 31 October 1997 complied with reg 2.10(1)(b). This was said to follow from s 69 of the Migration Act. The legislative scheme, so it was argued, envisaged that the RRT had jurisdiction to review on the merits a primary decision in fact made by the Minister’s delegate, even where the delegate had contravened s 47(3) of the Migration Act.  If reg 2.10(1)(b) were read in the light of this intention, it should be regarded as having been complied with where an incomplete application lodged at an office of Immigration was subsequently completed by information supplied to the RRT. Unless this was so, s 69 would not have “achieved its evident purpose of enabling merits review of a primary decision based on an invalid application”. 

57                  Finally, the Minister submitted that s 415(1) of the Migration Act conferred on the RRT all the powers of the Minister relevant to the review of the delegate’s decision, including the power impliedly conferred by reg 2.10(1)(b) on the Minister to receive an application. 

REASONING ON THE APPEALS

58                  To adapt an observation made by Gyles J in Yilmaz, at [68], there is something curious about these proceedings. The respondent to each appeal, having applied to the RRT for review on the merits of the delegate’s decision to refuse a protection visa, applied to the Court for an order setting aside the RRT’s decision.  The respondents’ applications for judicial review were each based on the ground that no valid application for a visa had ever been made and that therefore the RRT lacked jurisdiction to review the delegates’ decisions on the merits. Yet it was the respondents themselves who had invited the RRT to take this course. As in Yilmaz, the Minister has taken no point about the form of the proceedings.

59                  The Migration Act places great emphasis on the need for a visa applicant to complete a prescribed application form.  The authorities have recognised, in particular, that ss 45-47 of the Migration Act manifest a clear intention that lodgment of an application in the prescribed form is an essential precondition to the exercise of the Minister’s power to consider, and to grant or refuse, a visa.

60                  In Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245, the Full Court held that non-citizens who had arrived illegally in Australia were not entitled to be treated as persons to whom Australia had obligations under the Refugees Convention since they had not lodged applications in the prescribed form seeking protection visas. R D Nicholson J (with whom Jenkinson J agreed) explained the statutory scheme as follows (at 278-279): 

“Particular features of ss 45-47 of the Migration Act relevant to a proper construction of them are: s 45(1) asserts that a non-citizen “must” apply for a visa of a particular class.  Section 46 introduces the notion of validity as attaching to an application only in certain circumstances, indeed ‘if, and only if’ certain requirements are met.  One such condition is that the application is made in the way required by ss 45(2) and (3), that is as provided for in [reg 2.07].  Section 47(1) confines the Minister to only considering a valid application for a visa.  Section 47(3), ‘to avoid doubt’, enacts that the Minister is not to consider an application that is not a valid application.  How much plainer could Parliament have made its intention that an application in the required manner is an essential precondition to the Minister, as the relevant decision-maker, exercising the power to consider and grant a visa?  By linking the concept of validity to the use of Form 866, Parliament has spelt out that the use of that Form is of such importance to the general object of the legislation in this respect that it is incapable of partial compliance; to disregard it is to imperil validity of a ministerial [a]ct.

… 

In my opinion, a reading of these provisions makes apparent that the only way in which a visa of a particular class can be obtained is for an application to be made for it on Form 866.  Short of that there is no valid application and the Minister is enjoined from considering it”. 

Carr J expressed views to similar effect: at 261.  See also Minister v A at 443, per Merkel J; Yilmaz, at [19], per Spender J, at [69], per Gyles J. 

61                  It was common ground in the appeals that neither of the “applications” lodged with the Department had been completed in accordance with the directions stated on Form 866.  It follows that neither respondent complied with reg 2.07(3) and the applications, as originally submitted, were not valid applications: s 46(1)(b). The Minister was therefore precluded from considering each of the “applications” for a protection visa: s 47(3). 

62                  The authorities have acknowledged that, by reason of s 25C of the Acts Interpretation Act 1901 (Cth), substantial compliance with the requirements of reg 2.07(3) may be sufficient: Wu, at 278-79, per R D Nicholson J; Minister v A, at 444-445 per Merkel J.  However, as occurred in Minister v A and Yilmaz, the respondents’ failure to answer the critical questions on the prescribed forms meant that there had been no substantial compliance with the requirements of reg 2.07(3): Minister v A at 445, per Merkel J; Yilmaz, at [69], per Gyles J.

63                  The majority in Yilmaz held that an application for a protection visa that omits essential information from Form 866 is not necessarily incurably invalid. The context in which the majority reached that conclusion is important. The appellant had lodged a Form 866 on 7 August 1997. The form, as lodged, omitted answers to critical questions, but contained the endorsement “statement to follow” opposite various questions. On 13 October 1997, the appellant signed a statutory declaration setting out his claims. It was posted to the Department on 15 October 1997. On that date, but before the statutory declaration had been received, the Minister’s delegate refused to grant a protection visa. The delegate took this course not because the application was considered to be invalid, but on the ground that, in the absence of the missing information, the appellant could not establish his claim on the merits. On 22 October 1997, the appellant sought review by the RRT of the delegate’s decision. The RRT subsequently affirmed the decision on the merits. 

64                  A majority of the Court (Spender and Gyles JJ; Marshall J dissenting) held that the RRT had acted within its jurisdiction and powers in affirming the delegate’s decision. Both Spender and Gyles JJ took the view that, had the appellant’s statutory declaration of 13 October 1997 been received by the Department prior to the delegate’s decision on 15 October 1997, the appellant would have made a valid application for a protection visa. The delegate then would have had power, under s 65 of the Migration Act, to grant or refuse to grant the application. Their Honours went on to hold that, by virtue of s 415(1) of the Migration Act, the RRT had the same powers as the delegate. 

65                  Spender J explained why, in these circumstances, there would have been a valid application (at [19]–[21]):

“… 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. 

If, before the making of the 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. 

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”. 

66                  Gyles J observed (at [70]) that there was “much to be said” for the view that an incomplete prescribed form did not constitute an application at all. The alternative view was that the application in its original form had been made but was invalid.  He expressed the opinion (at [72]) that if the missing information had been received before the delegate’s decision “it would have completed the application or cured the defect, whichever may be the correct analysis”. 

67                  In Nader v Minister for Immigration and Multicultural Affairs [2000] FCA 908, a case decided four days before Yilmaz, Hill J considered the effect of an applicant supplying to the Department information foreshadowed in an incomplete Form 866.  His Honour held that the proper analysis was as follows: (at [50]-[52]):

“[T]he applicant lodged what can be referred to as an ‘inchoate’ application completed by the supply of information, which supply, while clearly not operating with retrospective effect to validate an application already lodged, did operate for the first time to cause there to be brought into existence a valid application.  So long as the provision of the information operated to complete the application before consideration by the Minister, the decision of the Minister could not be invalidated, because at the time of consideration by him, there was a valid application, and in consequence the decision of the Minister was a valid decision. 

…

Once the statement referred to in the Application Form to be forthcoming was in fact provided, it had to be read with the form then lodged.  Once this happened there was then an application which the Minister was obliged to consider …”.

68                  Hill J considered that the only difficulty with this argument lay with s 54 of the Migration Act, which required the Minister to have regard, in deciding whether to grant or refuse a visa, to all of the information “set out in” or “attached to” the application. His Honour took the view that information was “in” an application if it was incorporated by reference.

69                  In both Yilmaz and Nader, the Court was concerned with a situation, either actual or hypothetical, where an applicant, who had lodged an incomplete Form 866 and who had promised additional information, subsequently forwarded a document containing that information to an office of Immigration (as defined by reg 1.03) before the decision making process had commenced. In these circumstances, the view has been taken that the two documents (the Form 866 and the document containing the promised information) can be read together. Accordingly, a valid application is taken to be lodged when the promised information is supplied. 

70                  The circumstances in the present appealsare, of course, different because the information foreshadowed in each Form 866 was never supplied by the respondents to an office of Immigration. Mr Li never provided the “attachment” referred to in the incomplete Form 866. Rather, he supplied a detailed submission to the RRT, in support of his application for review of the delegate’s refusal to grant him a protection visa. That submission did not purport to be the attachment omitted from the Form 866. Most importantly, there is nothing to indicate that Mr Li’s submission was ever forwarded to or received by the Department or, for that matter, by the Minister’s delegate. In Mr Kundu’s case, the submission was forwarded by his agent to the RRT, not to the Department. There is nothing to suggest that it was ever received at an office of the Department.

71                  The Minister’s principal contention was that the submissions forwarded by Mr Li and Mr Kundu to the RRT completed the inchoate initial applications or in some other manner constituted valid applications. The difficulty confronting this contention lies in reg 2.10(1)(b).  On the face of it, reg 2.10(1)(b) requires an application for a visa to be made at an office of Immigration. It is difficult to see how that requirement can be complied with if an essential component of a valid application (that is, the information foreshadowed in, but not accompanying the original application) is supplied, not to an office of Immigration, but to a different body located at a different address.

72                  Regulation 2.10(1)(b) is plainly drafted on the assumption that an application for a visa is to be considered by the Minister, at least in the first instance. It proceeds on the basis that the prescribed form should not only set out the claims made by the applicant, but should be made at an office of Immigration. There are obvious reasons of administrative efficiency underlying the requirement that the application be made at an office of Immigration and not elsewhere. Among its other advantages, the requirement facilitates consideration of the application by the Minister, or his or her delegate. The requirement is consistent with the legislative insistence on completion of a prescribed application form, even to the point of conditioning the exercise of the Minister’s powers on lodgment of a completed form. 

73                  The Minister sought to overcome this difficulty by submitting that reg 2.10(1)(b) does not prescribe “the way for making … an application” for the purposes of s 45(2)(a) of the Migration Act.  It is true that, as the Minister contended, reg 2.10(1), unlike reg 2.07(1), is not prefaced by the words “[f]or the purposes of sections 45 and 46 of the Act”.  But neither is reg 2.07(3) which, as the Minister accepted, prescribes the way for making an application within s 45(2), namely the completion of an approved form in accordance with the directions contained therein. 

74                  The test of whether a regulation prescribes “the way for making … an application in specified circumstances” within s 45(2)(a) of the Migration Act is whether the regulation, objectively viewed, answers the statutory description. It is not essential that the regulation itself include words that identify the source of the statutory power to make the regulation.  A regulation may be a valid exercise of a particular power even if the source of the power is not identified, or is incorrectly identified: Ramos v Minister for Immigration and Multicultural Affairs (1999) 91 FCR 329 (FC),at 333.  Nor is it to the point that there is some more general power, which might support a regulation in the same or similar terms; cf. s 504(1)(e) of the Migration Act, which permits regulations to be made in relation to the lodging of documents with the Minister or any other person or body. 

75                  Regulation 2.10(1)(b), objectively viewed, prescribes the way in which an application for a visa is to be made, namely at an office of Immigration. The regulation applies in specified circumstances, namely where an application is to be made in Australia. It is therefore a regulation that prescribes the way for making an application in specified circumstances within the meaning of s 45(2)(a) of the Migration Act. If an application does not comply with reg 2.10(1)(b), the consequence is that the purported application is invalid: s 46(1)(b).

76                  The Minister’s contention that the lodging of the incomplete Form 866 constituted the making of an application for the purposes of reg 2.10(1)(b) cannot be sustained. As Hill J pointed out in Nader, at [53], the legislation uses the term “application” in two senses.  Sometimes, as in s 54, the word refers to the application form itself.  On other occasions, as in ss 45 and 46, it refers to the process of applying for a visa which includes, but is not limited to, the completion of a prescribed application form.

77                  Regulation 2.10(1)(b) is concerned not merely with the lodging of an approved application form, but with the process of applying for a visa. The incomplete Form 866 lodged by Mr Li on 4 July 1997 plainly did not constitute a valid application for a protection visa.  Nor did it constitute the making of an application for the purposes of reg 2.10(1)(b).  There could be neither a valid application, nor the making of an application, until the information necessary to complete the Form 866 had been supplied. The effect of reg 2.10(1)(b) is that the additional information had to be supplied at an office of Immigration, not to the RRT.  The same analysis applies in Kundu.

78                  It is not necessary to consider whether the supply of a document that does not purport to be the statement foreshadowed in the incomplete Form 866 can constitute compliance with reg 2.10(1)(b).  Nor is it necessary to consider in what precise circumstances information can be said to be provided to an office of Immigration. The submissions to the RRT were never intended for, nor received by, the Department or the Minister. They were plainly not provided to an office of Immigration as required by reg 2.10(1)(b). 

79                  Contrary to the Minister’s submissions, this is not a case for the application of the maxim “lex non praecipit inutilia”. There may be debate about the wisdom of a legislative scheme that places so much emphasis on adherence to formal requirements. But given the assumptions underlying the scheme, there is obvious utility in requiring all the elements going to make up a valid application to take place at an office of Immigration. In the absence of such a requirement, there is a risk of documents going astray and of decisions being made (or not being made) without all relevant information being placed before the decision maker.  If an applicant can complete a prescribed form in stages (as the legislation has been construed to permit), there are advantages in ensuring, even on pain of rendering an application invalid, that all components of a valid application form are provided to an office of Immigration. 

80                  The remaining arguments advanced by the Minister can be dealt with more briefly.  It can be accepted, for present purposes, that a decision of the Minister’s delegate to reject an invalid application for a visa is subject to review by the RRT, notwithstanding that the delegate contravened s 47(3) of the Migration Act by making the decision. It can be accepted, for present purposes, that a decision of the Minister’s delegate to reject an invalid application for a visa is subject to review by the RRT, not withstanding that the delegate contravened s 47(3) of the Migration Act by making the decision. It can also be accepted that this result comes about, at least on one view, because of s 69 of the Act. It is one thing, however, for a decision improperly made by a delegate to be saved from invalidity by s 69 so as to be subject to review by the RRT. It is another to conclude that the legislation evinces a policy that an incomplete application lodged with the Department should be taken as complying with reg 2.10(1)(b). It is difficult to see how s 69, whatever its scope, can affect the construction of reg 2.10(1)(b). 

81                  Similarly, it is difficult to see how s 415(1) of the Migration Act, can support a decision by the RRT on the merits, in circumstances where no valid application has ever been lodged.  Section 415(1) empowers the RRT, for the purposes of the review of a RRT-reviewable decision, to exercise all the powers and discretions that are conferred by the person who made the decision.  Yilmaz held that s 415(1) permitted the RRT to review, on the merits, a decision of the Minister’s delegate where a valid application for a visa had been lodged, albeit after the date of the delegate’s decision. Yilmaz did not consider whether the RRT had jurisdiction to review on the merits a decision of the Minister’s delegate where no valid application for a protection visa had ever been lodged. Nor did Yilmaz consider whether reg 2.10(1)(b) would be satisfied if the information required to complete a Form 866 were supplied to the RRT, rather than to an office of Immigration. 

82                  It strains language to say that the powers which are conferred on the RRT for the purposes of the review of a RRT-reviewable decision include the power to receive essential components of the prescribed application form.  Regulation 2.10(1)(b) requires an application to be made at an office of Immigration in Australia. That includes all essential components of the prescribed application form.  Section 415(4) of the Migration Act makes it clear that the RRT cannot make a decision not authorised by the Migration Act or the regulations. A decision to refuse a visa where no valid application for a visa has been made is a decision not authorised by the Migration Act or the regulations. The fact that the Migration Act preserves an unauthorised decision by a delegate, so as to make it subject to review by the RRT, does not confer on the RRT greater powers than a delegate could ever have properly exercised in relation to an invalid application.

CONCLUSION ON THE APPEALS

83                  For the reasons we have given, Heerey J was correct in Wen Han Li to conclude that the decision made by the RRT in Mr Li’s case were not authorised by the Migration Act or the regulations. His Honour was therefore correct to set aside the decision of the RRT.  Similarly, Lindgren J was correct to set aside the decision of the RRT in Kundu.

84                  This conclusion suggests that the appropriate orders are simply to dismiss the Minister’s appeals. Orders dismissing the appeals, however, would seem to leave undisturbed the decision of the delegate in each case to refuse protection visas. Given that neither Mr Li nor Mr Kundu ever lodged a valid application, it might be thought that the delegates’ decisions should also be set aside, since the invalid applications should not have been considered: Migration Act, s 47(3).

85                  Mr Li’s application for review in this Court sought not only an order setting aside the RRT’s decision, but an order pursuant to s 481(1)(b) of the Migration Act that the RRT “give further consideration according to law to all matters to which the decision relates”. Although the material in the Appeal Book does not explain why an order in these terms was sought, it may have been designed to ensure that the delegate’s decision rejecting Mr Li’s application for a protection visa was also set aside.  In the event, Heerey J did not make an order under s 481(1)(b). Mr Li has filed no cross appeal challenging his Honour’s failure to make an order under s 481(1)(b).

86                  Mr Kundu’s amended application for an order of review before Lindgren J sought only an order that the decision of the RRT of 30 September 1999 be set aside. There has been no cross appeal by Mr Kundu.

87                  Because of the unusual course of the appeals, it is appropriate to give the parties an opportunity to make submissions as to the orders that should be made disposing of the appeals. Consideration may need to be given to the terms of s 481(1)(b) of the Migration Act, the decision of the High Court in Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 169 ALR 515, the impact of s 48A of the Migration Act on any future application by Mr Li or Mr Kundu for a protection visa, and the significance of the fact that neither respondent filed a cross appeal. We shall make directions for further submissions.

orders

88                  The respondents to each appeal should file and serve submissions as to the appropriate orders for disposing of the appeals, including costs, within fourteen days. The Minister’s submissions in each appeal should be filed and served within a further fourteen days.

Associate:

Dated:              18 October 2000

Minister for Immigration and Multicultural Affairs v Wen Han Li

Minister for Immigration and Multicultural Affairs v Kundu