FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v Li [2000] FCA 1692

Migration Act 1958 (Cth), ss 48A, 481.

Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906, cited.

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS v WEN HAN LI

V 246 of 2000

RYAN, SACKVILLE & EMMETT JJ

MELBOURNE

23 NOVEMBER 2000

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v PRABIR KUNDU

N 557 of 2000

RYAN, SACKVILLE & EMMETT JJ

SYDNEY

23 NOVEMBER 2000

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s taxed costs of and incidental to the appeal including any reserved costs but not including his costs of preparing the written submissions filed on 24 August 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 appeal be dismissed.

2.                  The appellant pay the respondent’s taxed costs of and incidental to the appeal including any reserved costs

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

AND

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

SUPPLEMENTARY REASONS FOR JUDGMENT

THE COURT:

1                     On 18 October 2000, the Court published reasons for judgment in these matters explaining its conclusion that in each of them no valid application for a visa had ever been constituted by the furnishing of the requisite information to the Refugee Review Tribunal (“the RRT”): Minister for Immigration & Multicultural Affairs v Li [2000] FCA 1456.  At the same time the Court afforded the parties an opportunity to make further submissions as to the orders (including orders as to costs) which should be made in the light of that conclusion.

2                     It is agreed on all sides that an order should be made in each matter dismissing the appeal, which we shall do.

3                     It is also accepted, on behalf of the Minister, that he should pay the respondent’s costs of the appeal in Kundu.  However, the Minister contends that his liability for the costs of the appeal in Li should exclude the costs of preparing the written submissions which were filed on behalf of Mr Li, by leave, on 24 August 2000 after the oral hearing on 18 August 2000.  The Minister also claims that he should have his costs of preparing written submissions in reply to those of Mr Li filed on 24 August. 

4                     We consider that there is much to be said for the argument that the respondent’s written submissions in Li did not travel beyond what could have been submitted in oral argument had that argument been prepared on the obvious assumption that the Minister would contend that Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906 should be followed in the instant appeal.  However, if senior counsel for the Minister had put in oral argument all that he wished in reliance on Yilmaz, then very little, if any thing, was required in response to the respondent’s written submissions of 24 August.  In these circumstances we would make no order as to the costs of either set of written submissions.

5                     It has been submitted on behalf of the respondent, Mr Li, that as well as allowing the appeal which would preserve the orders made at first instance setting aside the decision of the RRT affirming a decision of the Minister’s delegate not to grant a protection visa, this Court make the following further orders:

“(i)      Declare that the application lodged by Mr Li on 4 July 1997 was not a valid application for the purposes of s 46 of the Migration Act 1958 (Cth) (as amended) (“the Act”):  s 481(1)(c);

(ii)       Declare that s 48A of the Act does not preclude Mr Li from making a valid application for a protection visa:  s 481(1)(c);

(iii)      Declare that the decision by a delegate of the Appellant in relation to Mr Li made on 11 August 1997 is invalid and of no effect:  s 481(1)(c);  or

(iv)      Alternatively to (iii), refer the decision back to the Refugee Review Tribunal (“the RRT”), subject to a direction that the RRT set aside the decision of the delegate on the basis that Mr Li’s application was not a valid application and s 47(3) of the Act precluded the delegate from considering it:  s 481(1)(b);”

6                     A similar submission has been made by Counsel for Mr Kundu who has contended that, in addition to dismissing the appeal in his matter, this Court should make the following further orders:

“(ii)     the Court declares, pursuant to s 481(1)(c) of the Migration Act 1958 (Cth) (“the Act”) that the Respondent’s application dated 13 July 1998 did not constitute a valid application for the purpose of s 46 of the Act;

(iii)      the Court orders, pursuant to s 481(1)(b) of the Act that the matter be referred to Ms Ruth Layton of the Refugee Review Tribunal with a direction that she make an order pursuant to s 415(2)(d) of the Act setting aside the decision of Minister’s Delegate dated 14 August 1998 to refuse to grant a Protection Visa on the ground that the Delegate had no power to refuse to grant a visa in relation to an invalid application;

(iv)      the Court declares, pursuant to s 481(1)(c) of the Act, that, for the purposes of s 48A of the Act, the Respondent has not made an application for a Protection Visa which has been refused.”

7                     Although, on its face, s 481 of the Migration Act 1958 (Cth)  (“the Act”) confers on this Court powers which are wide enough to support the declarations and other orders sought by the respondents, they are primarily powers exercisable at first instance “[o]n an application for review of a judicially reviewable decision”.  No application was made to the primary Judge in either matter for the declaratory or other relief now sought and neither respondent cross-appealed against the failure to make other orders. No application was made to this Court, for example pursuant to s 28(1) of the Federal Court of Australia Act 1976 (Cth), to amend the application filed in the proceedings at first instance. In these circumstances, it would be inappropriate for this Full Court to pre-empt a finding on the application of s 48A of the Act where no issue concerning the application of that section has arisen on appeal. 

8                     For these reasons, we shall confine ourselves to ordering, in each matter, that the appeal be dismissed with costs save that such costs in the appeal in Li shall not include Mr Li’s costs of preparing the written submissions filed on 24 August 2000.

Associate:

Dated:              23 November 2000

Minister for Immigration and Multicultural Affairs v Wen Han Li

V 246 of 2000

Minister for Immigration and Multicultural Affairs v Kundu

N 557 of 2000