FEDERAL COURT OF AUSTRALIA

Ahonima v Minister for Immigration and Multicultural Affairs [2001] FCA 764

SISIPELI AHONIMA & ANOTHER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N212 of 2001

JUDGE:                ALLSOP J

PLACE:                 SYDNEY

DATE:                   15 JUNE 2001

THE COURT ORDERS THAT:

1.       The application be dismissed.

2.       There be no order as to costs.

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

(EX TEMPORE) REASONS FOR JUDGMENT

1                     The applicants seek review by this Court of a decision of a delegate of the Minister made on 1 March 2001.  It is necessary to describe some background facts before proceeding to the nature of that decision and the grounds put forward for its review.  The first applicant is a Tongan national born on 13 September 1960.  She arrived in Australia on 23 September 1997 on a Tongan passport.  On 24 March 1998 she applied for a protection visa under the Migration Act 1958 (Cth) (the Act).  The application was refused by a delegate of the Minister on 9 April 1998.  The grounds of the application and the reasons for refusal are not strictly speaking relevant to today's application.  However, briefly, they were as follows.

2                     As recorded in the reasons of the delegate, dated 9 April 1998, the first applicant claimed that she was active in the pro-democracy movement in Tonga and that because of this she was dismissed from her job as a nurse and was subjected to police harassment.  It is also recorded by the delegate that the first applicant claimed that the noble in charge of her village was arrested because a number of people in the village were active in the pro-democracy movement.  It is recorded in the delegate's decision that the first applicant said that she feared for her life if she returned to her village by reason of the above matters.  The delegate, in short, found that the first applicant's claimed fear (for a Convention reason) relating to persecution in Tonga was not well-founded.

3                     The delegate relied very much on country information and reached the conclusion that there was not a well-founded fear and that internal re-location within Tonga was available.  By letter dated 9 April 1998, which was apparently sent by registered mail on 9 April 1998, the first applicant was given notice of this refusal.  On 15 May 1998 the Refugee Review Tribunal, (to which I will refer hereafter as the Tribunal), received from the first applicant an application for review of the delegate's decision.  The application appears to have been signed by the first applicant on 13 May 1998, but it bore a received stamp of 15 May 1998.  The importance of the date of receipt was made clear by a letter dated 19 October 1998 from the Tribunal to the first applicant.

4                     By this letter the first applicant was notified that her application had been received one day out of time, a fact which, it was stated in the letter, denied the Tribunal jurisdiction to hear her application.  I should add that if the timing of the matters were accurately set out in the Tribunal's letter, about which there is no reason to doubt, the Tribunal was correct in its view of the position as to jurisdiction, by reason of the relevant provisions of the Act.  In that letter of 19 October the Tribunal invited the first applicant to send the Tribunal any information or written submissions about this jurisdictional issue within 14 days from 19 October.  Apparently, the invitation for further submissions and information was not taken up.

5                     By letter dated 12 November 1998 the Tribunal informed the applicant that it had decided that there was no jurisdiction to determine her application.  The Tribunal stated that this meant that the Tribunal could not review the decision to refuse her a protection visa. Reasons were given for that decision.  Those reasons were recorded in a four-page document dated 11 November 1998.  The Tribunal stated:

The letter advising the applicant of the delegate's decision was dated 9 April 1998.  The notification was correctly addressed and its contents complied with the legislative requirements.  The Department has advised that it was sent by certified mail to the applicant on 9 April 1998.  A copy was also sent to the applicant’s adviser.  The applicant is taken to have received the letter on 16 April 1998.  Therefore, the 28 day period within which the review application must be lodged ended on 14 May 1998.  The application for review was not received by the Tribunal until 15 May 1998, which is after the prescribed period had expired.

6                     Shortly thereafter, in late November 1998, migration agents, acting on behalf of the first applicant, wrote to the Minister, asking the Minister to exercise his discretion under s 417 of the Act.  Under that provision it was open to the Minister, if he thought that it was in the public interest to do so, to substitute for a decision of the Tribunal under s 415 another decision, being a decision that was more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. 

7                     By s 415 the Tribunal was empowered to exercise all the powers and discretions that are conferred by the Act on the person who made the decision.  Further, under s 415, the Tribunal was empowered to affirm the decision, or vary the decision, or remit the matter for consideration in accordance with such directions as were permitted by the regulations, or to set aside the decision and substitute a new decision.  The reason I describe the contents generally of ss 415 and 417 is that the Minister took the view, when considering the request under s 417, that that section could not apply in the circumstances because there had not been a relevant substantive decision of the Tribunal, the only decision of the Tribunal being the one that it had no jurisdiction.  That decision of the Minister appears to be reflected in the terms of s 415, in particular, sub-s. 415(2).

8                     On 19 February 1999 Senator Patterson wrote on behalf of the Minister to the first applicant saying that s 417 could not apply because there was no substantive decision of the Tribunal in the place of which the Minister might substitute a decision.  In that letter, the first applicant was asked to contact the nearest regional office of the Department to discuss her status in Australia.  In February 2001 the first applicant was detained at Villawood Detention Centre for a short period.  She had voluntarily attended at local authorities.  By now she had given birth to the second applicant, her daughter.  The father is her partner who has, apparently, residential status in Australia.

9                     On 28 February 2001, while in the brief detention (or shortly prior to the brief detention) at Villawood, she had an interview with an officer of the Department.  The typed record of interview and the handwritten record of interview are set out in the court papers.  In the typed record of interview, the following appears (and in setting this out I replace abbreviations with relevant words to make the passage understandable):

[The first applicant] advised that she wanted to stay in [Australia] with her child and the child's father.  I advised her of the s48 bar because of her Protection Visa refusal.  I advised that if she intended to lodge an application on shore then her defacto spouse would need to make some enquiries regarding her eligibility to lodge whilst s 48 barred, otherwise when she returned to Tonga her defacto spouse May be able to sponsor her under Defacto grounds and Evid[ence] of Co-hab[itation] would be required.  I also advised her that because she had become unlawful in [Australia] for a period of time an exclusion period may apply, however she would need to discuss with the Australian Embassy in Tonga as the Embassy deals with these maters, not Immigration in Australia.

10                  The note continues:

[The first applicant] advised that she would want to make an Australian Passport for her child as she wanted her child to return with her to Tonga to await a decision on her migration application.  She was advised that first it would need to be established that the child was an [Australian] citizen and secondly if this was established she would also require the child’s father’s signature on the application form and permission for the child to depart Australia.

[The first applicant] was advised the importance of establishing the child's identity before the Department could advise if we could consider a release with conditions and bond from detention.

The applicant advised that she was expecting a visit at 2.00 pm today and that her visitors would also be bringing the Original Birth Certificate of the Child.

11                  It is claimed in the application, and in the written submissions in support of it, that upon detention, the first applicant was not informed of her rights under ss 195 and 196 of the Act.  Relevantly, those provisions are in the following terms (I firstly include s 194):

194      As soon as reasonably practicable after an officer detains a person under section 189 the officer must ensure that the person is made aware of the provisions of sections 195 and 196

           195       (1) A detainee may apply for a visa:

(a)          within 2 working days after the day on which section 194 was complied with in relation to his or her detention; or

(b)          if he or she informs an officer in writing within those 2 working days of his or her intention to so apply – within the next 5 working days after those 2 working days.

12                  Subsection (2) is not presently relevant.  I do not set out the terms of s 196. 

13                  The first applicant has filed an affidavit in which she says that:

[T]he delegate wrongly failed at interview held on 28 February 2001 at Villawood Detention Centre (page 63 of Court Book question 8) to ensure that the applicant was made aware of the provisions of ss 195 and 196 of the Act.

14                  In the court book, to which the first applicant referred in her affidavit, there is in fact a handwritten note in the handwritten record of interview which is in the following terms:

Advise visa options, 2 + 5 days.

15                  This note tends to indicate that, contrary to the first applicant's recollection, she may well have been advised of the terms of ss 195 and 196 or, at the very least, s 195.  I will return to this in due course.

16                  On 1 March 2001, that is the day following her interview at Villawood, the first applicant signed an application for a bridging visa E subclass 050.  On the same day, the first applicant was advised that this visa had been granted.  The letter of 1 March to this effect stated as follows:

I am writing to you to advise of your release conditions.  You have been granted a bridging visa E valid until 8 March 2001.  You must attend this office with evidence from the consulate of having applied for a travel document for you and the child.

17                  It is this decision to grant the bridging visa which is the subject of the application for review.  That this is so is made clear by the affidavit and submissions (to which I will direct myself in a moment) which concerned the events leading up to its grant, that is, the matters arising from and attendant upon the interview on 28 February. 

18                  Returning to the chronology, on 5 March 2001 the first applicant's brother and her partner attended an office of the Department and advised that they were having difficulty in complying with the time required to obtain tickets and travel documents.  Shortly thereafter, on 8 March, the Department received an application and a request said to be under ss 48B and 50 of the Act.  This application and request was for the Minister to consider a further application for a protection visa.

19                  Section 48A provides that, subject to s 48B, a non-citizen who, while in the migration zone, has made an application for a protection visa where the grant of a visa has been refused, may not make a further application for a protection visa while in the migration zone.  Under s 48B the Minister is given a personal discretion such that, if he or she thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that s 48A does not apply to prevent an application for a protection visa made by the non-citizen.  Section 50 provides that if a non-citizen who has made an application for a visa, where the grant has been refused, makes a further application for a protection visa, the Minister, in considering the application, is not required to consider any information considered in the earlier application, and may have regard to, and take to be correct, any decision that he or she has made about or because of that information.

20                  Thus, on the day of the expiry of the bridging visa, granted on 1 March, the first applicant made an application for an exercise of discretion by the Minister which, if successful, would have enabled a further protection visa application to be made, and thereby, perhaps, overcome the difficulty that had arisen in 1998 caused by the filing of the application for review by the Tribunal one day out of time.  The application made on 8 March 2001 was supported by six pages of written typed submissions and was signed by the first applicant.  It was supported by, amongst other things, a statutory declaration of the first applicant, a petition from members of the Free Church of Tonga to the Minister, and a letter from Reverend Paula Talakai of the Free Church of Tonga to the Minister.

21                  If I may say so, that petition and that letter, identify matters in relation to the character of the first applicant which at the very least would indicate her good character, and do not indicate any reason why she might not otherwise make a good citizen for this country, nor is there anything in the court book which would so indicate.

22                  On 8 March 2001, the day of receipt of her application and request under ss 48B and 50, the first applicant was informed that she had been granted a further bridging visa, class D, subclass 041, for five days.  The purpose of this visa appears to have been to enable the application and request under ss 48B and 50 to be dealt with. 

23                  By letter dated 30 March 2001 the applicant was informed that her request for the exercise of the discretion under s 48B had been refused.  The letter of 30 March 2001 stated, amongst other things, the following:

Your request for the exercise of the Minister's power under s 48B of the Migration Act has been assessed against the Minister’s Guidelines for Purported Applications for a Protection Visa subject to s48B and Requests for Ministerial Intervention under s48B.  However your case did not meet these guidelines, and will not be referred to the Minister for consideration under s48.

24                  Subject to some matters raised by the first applicant orally this morning, that is the relevant chronology.  The matters raised by the applicant this morning are that she informs the Court that there was an attempt yesterday to file another application with the Department, the precise nature of which she did not indicate.  The application is made by her partner on behalf of herself and her daughter or on behalf of her daughter (who is named as the second applicant).  It may be that a further application is being made for a relevant visa or for some other right under the Act.

25                  What is before the Court today is, as I have said, the application for review of the decision of 1 March 2001 to grant the bridging visa, which was given so that the first applicant may make arrangements and put in place steps to leave the country following the failure of her application under s 417.  The grounds of the application for review are twofold.  They are as follows:

(1)              The delegate has directed the applicant to show travel ticket by 8 March 2001 and leave the country without taking into consideration the Australian citizen child of the applicant involved error of law.

(2)              The applicant was denied natural justice in connexion with the making of the decision.

26                  On 6 June 2001 the first applicant filed an affidavit, which provided in paragraph 2 information as to her belief as to not being made aware of the provisions of ss 195 and 196.  I have earlier quoted that paragraph.  The applicant's submissions were filed on 14 June 2001.  I will not set them out in full although they only run for two pages.

27                  The claim that the first applicant was denied natural justice, or that the first and second applicants were denied natural justice, is not taken up in the submissions.  Even assuming that there was a relevant review of the decision, the terms of subsection 476(2) would make the ground of an alleged breach of the rules of natural justice inapplicable as a relevant ground of review. 

28                  This leaves the first ground of review to which I have referred.  The submissions elaborate upon this ground in three paragraphs.  The first paragraph complains that the delegate told the applicant at the interview that she was not allowed to apply for a further substantive visa by reason of s 48 of the Act, which is said to have been false and misleading and involving fraudulent and negligent advice.  Reference is made to page 63 of the court book, question 8.  There is no precise record of the first applicant being told of her rights under ss 48B and 50 and it may be that, as appears from the handwritten record of interview and the typescript, s 48 was referred to, which on one view may have involved an over-simplification of the operation of ss 48, 48A, 48B and 50.  Whatever may or may not have been the misleading nature or the incorrect nature of what was said, the first applicant on her own behalf and on behalf of the child, within a matter of a week, made an application under ss 48B and 50, as I have indicated. 

29                  In any event, what is set out in paragraph 1 of the applicants' submissions is not a ground of review under the Act.  I will come back to this proposition shortly.

30                  The second paragraph in the applicants’ submissions elaborates upon the complaint made in the first paragraph.  It is stated in that paragraph of the submissions, (that is paragraph 2), that the advice given, that s 48 prevented further application, was wrong because a special eligibility (residence) class AO visa could be applied for irrespective of the failure of the earlier application as could a protection visa (class XA), and, subject to sub-regulation (3), a medical treatment visitor visa (class UB).  It is not stated anywhere in the submissions that the special eligibility or medical treatment visitor visa are either relevant, or cannot now be made.  As to the protection visa, this was not prevented by s 48 but by s 48A subject to s 48B, and the dispensatory powers or circumstances provided for by sections 48B and 50 were later otherwise availed of, albeit unsuccessfully.

31                  The third paragraph of the first applicants’ submissions state that the delegate failed to make the first applicant aware of her rights under ss 195 and 196 of the Act in accordance with s 194.  I have earlier discussed and referred to the significant likelihood that the first applicant is mistaken in her evidence that this was not referred to. However, it does not matter.  Neither this failure, nor the alleged misleading statements to which I have earlier referred, provides or provide grounds of review.  They are not decisions under the Act.  They are conduct undertaken by, or not undertaken by, the delegate, which is not part of the process of making the relevant decision.  Each is a matter collateral to the decision which was made, that is the granting of the bridging visa on 1 March.  Even if either could be seen as part of the process of the decision making, s 476(1)(e) postulates an error which finds a necessary consequence in the ultimate decision: see Minister for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343 at 350, [17].  There was no refusal of an application by the applicant on 1 March for a visa, or for anything else.

32                  There was no decision involved in these misleading statements, if indeed they were misleading, or in the failure to inform the first applicant of her rights under ss 195 and 196, if in fact that occurred.  I refer to the decision of Drummond J in Molisi v Minister for Immigration and Multicultural Affairs  [2001] FCA 420 [10], where his Honour was dealing with a similar question of a complaint about conduct, which did not involve a decision.

33                  Further, as Mr Smith submits, to set aside this decision would be futile, since the bridging visa expired and events moved on significantly from that. 

34                  For all the above reasons in my view the application should be dismissed.  

35                  The further submissions did not deal with the question of the position of the second applicant.  However, as I have said, the application raises the question of natural justice or a breach of the principles of natural justice.  As I have earlier said those matters are not able to be taken into account in reviewing a decision, by reason of the terms of s 476(2).

36                  Mr Smith in his submissions dealt with this matter in a somewhat more extended way, if I may use that expression without disrespect.  Even taking the natural justice ground as available, in paragraph 7 of his written submissions Mr Smith identifies some matters of relevance and importance which I will mention; that is, that in deciding whether to grant the bridging visa, there was information clearly before the delegate as to the child (the second applicant), which is sufficient to make it clear that there was before the Tribunal an awareness of the child and its circumstances.  In these circumstances, on the material available, I do not think it is open to conclude that there was any failure to take into account the consideration of the child in the granting of the bridging visa, which is the decision under attack. 

37                  For all the above reasons in my view the application should be dismissed. 

38                  The applicants’ submissions direct themselves to the question of costs should the application be dismissed.  The existence of the child and the impecuniosity of the first applicant are matters which I propose to take into account.  I should add, there is no direct evidence of impecuniosity of the first applicant, but from my review of the court book I am prepared to work on that assumption.  The respondent pressed for costs.  The question of costs in these kinds of cases can be difficult.  Many applicants who are unsuccessful appear otherwise deserving candidates for citizenship and residence in this country.  In all the circumstances, and in particular the existence of the young child, I think it would be a burden upon the applicants, in particular the first applicant, which, given the unfortunate history of this matter, would be unfair to visit upon her.  In those circumstances I do not propose to order costs against the first applicant or the second applicant.  

39                  In passing these remarks about costs I am not intending to cast any criticisms upon the Minister, his delegate, the Tribunal or the departmental officers whatsoever.

40                  Thus for the reasons I have given the orders I propose to make are that the application be dismissed and that there be no orders as to costs.

Associate:

Dated:                    27 June 2001

The Applicant appeared in person, assisted by an interpreter