FEDERAL COURT OF AUSTRALIA

Chelliah v Minister for Immigration & Multicultural Affairs [2001] FCA 200

IMMIGRATION – review of decision of Refugee Review Tribunal – where applicant had previously made an application for a protection visa – whether estoppel by convention arises where Department of Immigration and Multicultural Affairs treated the first application as invalid and the second application as valid – whether validity of an application for a protection visa is a question of law or a question of fact

WORDS AND PHRASES – “valid”

Migration Act 1958 (Cth) ss 46(1)(d), 48A, 476(1)(e)

Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 followed

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

Con-Stan Industries of Australia Pty. Ltd. v Norwich Winterthur Insurance (Australia) Ltd. (1986) 160 CLR 226 followed

N.S.W. Associated Blue-Metal Quarries Ltd. v Federal Commissioner of Taxation (1956) 94 CLR 509 at 512 referred to

Hope v Bathurst City Council (1980) 144 CLR 1 at 8 referred to

Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 208 followed

Nader v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 548 followed

PRASHANTHAN ANTON CHELLIAH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1209 OF 2000

STONE J

SYDNEY

7 MARCH 2001

THE COURT ORDERS THAT:

1.         the application be dismissed;

2.         the applicant pay the respondent’s costs.

REASONS FOR JUDGMENT

background

1                     The applicant, Mr Chelliah, first submitted an application for a protection visa under the Migration Act 1958 (Cth) (the “Act”) to the Department of Immigration and Multicultural Affairs (“Department”) on 12 December 1995. This application was incomplete in that several sections of the form had been left blank except for a comment that the applicant’s personal statement would be forwarded. The personal statement was sent to the Department on 21 December 1995. A delegate of the respondent (“Minister”) decided on 19 November 1997 that the protection visa should be refused. This decision was affirmed by the Refugee Review Tribunal (“Tribunal”) on 28 September 1999.

2                     On 25 October 1999, the applicant’s representative wrote to the Minister requesting that he exercise his powers under s 417 of the Act to substitute a decision more favourable to the applicant for the decision of the Tribunal. On 25 January 2000, the Minister replied by letter that he had decided not to consider exercising his power under s 417 of the Act. In February 2000, the applicant’s representative again requested that the Minister exercise his powers under s 417 of the Act and, on 29 March 2000, the Department replied that the applicant’s case had been reassessed but did not fall within the Minister’s Guidelines for referral to him.

3                     On 9 May 2000, the applicant sought to lodge a second application for a protection visa. The covering letter, from the applicant’s representative, stated that the first application was invalid because it did not include the necessary information. The letter stated:

“This being the case neither the Minister nor the [Tribunal] had power to consider his original application lodged by him in December 1995 and he is thus not prevented by s48A of the Act from submitting a further application for a Protection Visa.”

4                     Section 48A(1) of the Act provides:

Subject to section 48B, a non-citizen who, while in the migration zone, has made an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined)…may not make a further application for a protection visa while in the migration zone.

5                     By letter dated on 23 May 2000, the Department informed Mr Chelliah that, following the decision of the Court in Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435, his first application for a protection visa was considered to be invalid. The Department advised that he was not prevented by s 48A from making the second application. This second application was considered by a delegate of the Minister who rejected it on 22 August 2000. Mr Chelliah applied to the Tribunal for a review of the delegate’s decision.

6                     In its decision of 30 October 2000, the Tribunal decided, contrary to the advice to the applicant in the letter of 23 May, that the original application was valid. Accordingly, the applicant was precluded by s 48A from making the second application. The Tribunal set aside the delegate’s decision and substituted a decision that the protection visa application lodged 9 May 2000 was not valid and could not be considered.

reasons for decision of the tribunal

7                     The Tribunal gave the following summary of the jurisdiction and powers of the Tribunal:

“For the purposes of the review, the Tribunal is vested with the powers and discretions that are conferred by the Act on the person who made the decision: s.415(1) of the Act. Subsection 47(1) of the Act provides that the Minister “is to consider a valid application for a visa”. Subsection (3) provides that “to avoid doubt, the Minister is not to consider an application that is not a valid application”. Subsection 415(4) of the Act makes it clear that the Tribunal cannot make a decision that is not authorised by the Act or the Regulations. It follows that if a protection visa application is not valid then neither the delegate nor the Tribunal has power to consider it.”

8                     The Tribunal was of the view that, even if the delegate’s decision of 22 August 2000 was invalid, it remained an RRT-reviewable decision. However, the Tribunal stated that its ability to review the applicant’s case on the merits depended on the validity of the two protection visa applications lodged by Mr Chelliah.

9                     The Tribunal, citing the cases of Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 (“Yilmaz”), Wimalaratne v Minister for Immigration & Multicultural Affairs [2000] FCA 964 and Minister for Immigration & Multicultural Affairs v Li [2000] FCA 1456 (“Li”), stated that the deficiency in the content of the first application was overcome by the subsequent provision of the relevant information prior to the delegate’s decision.  It therefore concluded that the first application for a protection visa was valid. That being so, the Tribunal considered that the effect of  ss 46(1)(d), 48A of the Act was to render the second application invalid and consequently decided that it had no power to consider the application on its merits. On 30 October 2000, the Tribunal set aside the delegate’s decision and substituted a decision that the protection visa application was not valid and could not be considered.

Application for an order of review

10                  The applicant appealed on the basis of s 476(1)(e) of the Act alleging that the decision involved an error of law being an error involving an incorrect application of the law to the facts as found. Mr Killalea, counsel for the applicant, made detailed written and oral submissions. In essence, however, his point was that the letter of 23 May 2000 mentioned in [5] created an estoppel by convention that was binding on the Minister in that there was a shared assumption that the first application was invalid.

11                  The claim of an estoppel by convention was raised before the Tribunal which had held that the assumption on which the applicant was relying was “an assumption as to the legality of the first protection visa application” (emphasis added) not an assumption of fact. The Tribunal referred to the decision of the High Court in Con-Stan Industries of Australia Pty. Ltd. v Norwich Winterthur Insurance (Australia) Ltd. (1986) 160 CLR 226 (“Winterthur”) where, at 244, the Court made the following comments:

“First, there is no estoppel unless it can be shown that the alleged assumption has in fact been adopted by the parties as the conventional basis of their relationship… Secondly, just as estoppel by representation requires a representation of fact, so too estoppel by convention requires the assumed state of affairs to be an assumed state of fact…”

12                  Mr Killalea argued that the Tribunal erred in applying the law as stated in the Winterthur decision. He contended that the question whether the application could properly be described as a “valid” application is a question of fact rather than a question of law. His argument appeared to be that while the meaning of the word “valid” as used in the Act is a question of law, whether it applies to a particular application is a question of fact.

13                  With respect, this submission is fundamentally misconceived. It is true that the common meaning of a word in ordinary usage is a question of fact. For example, the meaning of the term “mining operations” in ordinary use and without any special legal definition or significance is a question of fact; N.S.W. Associated Blue-Metal Quarries Ltd. v Federal Commissioner of Taxation (1956) 94 CLR 509 at 512 per Kitto J. So is the meaning of the phrase “carrying on a business”; Hope v Bathurst City Council (1980) 144 CLR 1 at 8 per Mason J. However, the term “valid” as used in the relevant sections of the Act is not devoid of legal significance. On the contrary, it is a term of legal conclusion. To determine whether an application for a visa is valid, one does not survey people in the street attempting to determine how the word “valid” is used.  Rather, one must consider the provisions of the Act, namely s 46, and attempt to determine if the criteria imposed by the Act have been met. It may be that whether certain criteria have been met involves questions of fact, such as whether the application has been made on the correct form or whether the fee has been paid. However, the question as to whether an application is valid is a question of law and not of fact. I agree with the submissions of Mr Beech-Jones, counsel for the respondent, to the effect that to regard the Minister’s delegates as competent to make a binding decision as to the validity of an application is to allow them to assume a jurisdiction that the Act places elsewhere; Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 208 per Gummow J.

14                  I do not accept Mr Killalea’s submission that the Department or any of its officers were entitled to determine or assume that the first application was invalid and then proceed on this assumption. In my opinion, the Tribunal’s conclusion that the first application was valid was a correct application of the law as developed in Nader v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 548 and in the Full Court decisions of Yilmaz and Li.

15                  For these reasons, the application must be dismissed with costs.

Associate:

Dated:              7 March 2001