"A" v Pelekanakis

Federal Court of Australia|1999-07-01|Before: Hayne J, Commission J, Weinberg J

THE COURT ORDERS THAT: 1. Pursuant to s 481(1)(a) of the Migration Act 1958 (Cth) the decision of the first respondent of 24 July 1997 refusing the applicant a protection visa be quashed with effect from 24 July 1997. 2. Pursuant to s 481(1)(b) of the Migration Act 1958 (Cth) the applicant's application for a protection visa of 30 June 1997, together with such material as the applicant now desires to file in support of that application, such material, if any, to be filed within 21 days of the delivery of these reasons for judgment, be referred to the first respondent, or, in the alternative, any other person nominated by the second respondent, for further consideration. 3. The second respondent pay the applicant's costs, including the costs of the proceedings in the High Court before his Honour, Hayne J. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

AND: THE HON PHILIP RUDDOCK MP in his capacity as MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Background to the application 4 The applicant is Sri Lankan by birth. He arrived in this country on a student visa in 1996. That visa was valid until August 1998. However, in the early part of 1997, he determined that he would seek refugee status and apply for the grant of a protection visa. Provision is made for such visas in s 36(1) of the Migration Act 1958 (Cth) ("the Act") and also in cl 866.1 of Sch 2 to the Migration Regulations ("the Regulations"). 5 A criterion for a protection visa under s 36(2) of the Act is that the applicant for the visa be a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention (the Convention relating to the status of refugees done at Geneva on 28 July 1951) as amended by the Refugees Protocol (the Protocol relating to the status of refugees done at New York on 31 January 1967). The definition of a refugee requires that the applicant for refugee status have a genuine fear of being persecuted for a Convention reason if returned to his country of nationality, and that his fear be "well-founded". In Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 it was held that an applicant for refugee status would satisfy that definition if he showed a genuine fear founded on a real chance that he would be persecuted for a Convention reason if returned to the country of his nationality. In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 the "real chance" test was further explained as being helpful in understanding the statutory requirement that the fear be "well-founded" but not as a substitute for the Convention term. See generally Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 51 per Merkel J. 6 The applicant approached Victoria Legal Aid to assist him in his application for a protection visa. He first spoke with a solicitor employed by that office, Ms Kim Christine Boyd, on 15 March 1997. He was not, however, granted legal aid until 16 May 1997, and thereafter instructed Ms Boyd to act on his behalf. 7 Ms Boyd was aware from the time that the applicant first spoke to her regarding his situation that he held a student visa. She understood that the Government proposed to amend the Regulations with effect from 1 July 1997 to provide that a person who applied thereafter for a protection visa more than forty-five days after having first arrived in Australia would not be granted a bridging visa. Such visas are available pursuant to s 37 of the Act. It is a condition of being able to undertake employment in this country that a non-citizen who is seeking refugee status have such a visa. In order to forestall the effect of the proposed amendments, she advised the applicant that he should lodge his application for a protection visa before 1 July 1997. 8 The applicant subsequently provided Ms Boyd with a lengthy statement in support of his claim to be a refugee. He prepared this statement himself. It was poorly written, difficult to comprehend, and did not focus upon any of the relevant issues. Ms Boyd was faced with an unhappy dilemma. She had no proper instructions from the applicant to support his claim. At the same time, she felt constrained to lodge his application immediately in order to enable him to continue in employment while that application was considered. 9 Ms Boyd decided to have the applicant complete the formal parts of the relevant forms in support of his claim to refugee status. She made a conscious decision, however, not to include in these forms any of the salient facts concerning his background in Sri Lanka as set out in his prepared statement. She considered that this material was so poorly expressed, and so obviously inadequate, as to make it inappropriate to attempt to make any use of it in support of his claims. 10 The forms which were provided by the Department of Immigration and Multicultural Affairs ("the Department") included: · Application for a Protection Visa - Form B · Application for a Protection Visa - Form C · Migration Agent's Declaration Form 932. 11 Form C contained a large number of questions which the applicant was required to answer as part of his application for a protection visa. The preface to that form instructed, inter alia: "You must answer ALL questions. If any question is not applicable, write 'N/A'." 12 The critical part of Form C contained a series of five questions numbered 36 to 40 inclusive. These questions were preceded by a requirement that the applicant indicate the country or countries to which he did not wish to return. The applicant identified Sri Lanka as the country in question. The five questions which followed were: "36. Why did you leave that country? 37. Who do you think may harm/mistreat you if you go back? 38. Why do you think they will harm/mistreat you if you go back? 39. What do you fear may happen to you if you go back to that country? 40. Do you think the authorities of that country can and will protect you if you go back? If not, why not?" 13 Beneath each of these questions a substantial space was provided to enable the answer to be included on the form. The applicant was told that if he required more space he could attach extra pages, as required. 14 Instead of having the applicant attempt to answer these questions, Ms Boyd arranged for question 36 to be answered as follows: "I will be forwarding a Statutory Declaration detailing my claims to refugee status soon in response to questions 36-40." 15 Questions 37 to 40 inclusive were simply left blank. However, the remainder of the application form, which contained questions seeking particulars of a purely formal nature, was fully completed. 16 It is important to note that the applicant was required to, and did, declare at the end of the form that: "The information I have supplied on or with this form is complete, correct and up-to-date in every detail." 17 That declaration was made on 30 June 1997. On the same date, Ms Boyd addressed a letter to the manager of the Onshore Refugee Program at the Department of Immigration and Multicultural Affairs. Her letter was in the following terms: "Dear Sir, Protection visa application [re "A"] This office acts on behalf of Mr ["A"]. I enclose the following: 1. Application for protection visa (Forms B and C). 2. Copy of passport. 3. Form 932. 4. Sum of $30.00 by way of application fee. Would you please advise me of the name and telephone number of the officer who will be dealing with this matter so that I can discuss the provision of further material in support of Mr [A's] application and arrangements for his student visa to be cancelled." 18 In an affidavit sworn in these proceedings, Ms Boyd deposed that she attached Forms B and C, and the Migration Agent's Declaration Form 932, by paperclip to her letter of 30 June 1997. She instructed her secretary to deliver that letter, together with the attachments and the requisite application fee, to the Department on that same day. There is no dispute that her secretary did deliver the letter and the attached forms in accordance with Ms Boyd's instructions. The Department subsequently acknowledged that it had received the application fee on 30 June 1997. 19 It seems that Ms Boyd had been involved in previous dealings with the immigration authorities. She deposed that, in her experience, the Department usually sent a formal letter acknowledging having received an application for a visa before it embarked upon any consideration of any such application. Her letter of 30 June 1997 was written in the belief that the same procedure would be followed in the applicant's case. She had expected to be advised by the Department of the name and telephone number of the officer who would be dealing with the applicant's claim so that she could provide the material required to support his case and, as she stated in her letter, also make arrangements for his student visa to be cancelled. 20 To Ms Boyd's evident consternation, the first response which she received to her letter, and the applicant's visa application, was a copy of pages 2 to 5 of the first respondent's reasons for decision dated 24 July 1997 rejecting that application. The reasons for decision were accompanied by a letter of the same date. 21 In his reasons for decision, the first respondent found that the applicant satisfied the basic formal criteria for the grant of a protection visa. He also found that the applicant was not excluded from coverage of the Refugees Convention under Arts 1D, 1E or 1F. 22 When he came to deal with the question whether the applicant had demonstrated that there was a real chance of persecution for a Convention based reason if returned to Sri Lanka, the first respondent concluded: "As the applicant has not presented any claims in his application, I am unable to conclude that any harm he may fear is of sufficient gravity as to amount to persecution within the terms of the UN Convention on Refugees." 23 Immediately below that statement, the first respondent set out, under the heading "Findings of fact", the following: "Based on the available evidence, I find that the applicant does not have a real chance of persecution for a Convention reason if returned to Sri Lanka." 24 These conclusions reflected the undeniable fact that there had been no material provided to the first respondent to support the applicant's claims for a protection visa. The critical information, which normally would be included in answer to questions 36 to 40 of Form C, had simply been omitted. 25 In the ordinary course, the applicant would have had available a relatively straightforward remedy for what had occurred. He could simply have sought review of the first respondent's decision by the Refugee Review Tribunal ("the Tribunal"). The Tribunal conducts merits review. In effect, it stands in the shoes of the delegate when it considers whether or not a protection visa should be granted. The applicant had only to ensure that, on review, the critical material, which had not been provided to the first respondent, was in fact provided. 26 On 1 August 1997 Ms Boyd prepared an application for review by the Tribunal. Once again, regrettably, her knowledge of the workings of the Act and of the Regulations appear to have operated to the applicant's detriment. Ms Boyd believed that under the Regulations, an application for a protection visa negated the continuation of a student visa. She believed, therefore, that the applicant had to obtain a bridging visa A before he lodged his application for review with the Tribunal. Only in that way could he ensure that he held a bridging visa throughout the whole of the review process, and thereby continue in employment. Ms Boyd had earlier alluded to this issue in her letter of 30 June 1997 when she referred to making "arrangements for his student visa to be cancelled". 27 On 4 August 1997 Ms Boyd sent the applicant's passport to the Department in order to have it endorsed with a bridging visa A. This endorsement was summarily refused. Ms Boyd was due to go on medical leave on the evening of 6 August 1997. On that day she prepared two documents. The first was a letter for transmission to the Tribunal by facsimile which was to enclose the application for review. The second was a letter enclosing the applicant's passport with a further request that it be endorsed with a bridging visa A. She left written instructions for her secretary (who had gone home by the time these documents were prepared) to attend to these letters on 7 August 1997, in Ms Boyd's absence. 28 The letter enclosing the applicant's passport was received by the Department on 7 August 1997. A receipt was sent by the Department to Victoria Legal Aid for the passport. It would appear, however, that contrary to instructions, the letter enclosing the application for review had not been faxed. No explanation has been provided as to how this critical omission occurred. 29 Ms Boyd returned to duties towards the end of August 1997. She believed, at that stage, that the application for review had been lodged with the Tribunal. However, on 3 September 1997, after she contacted the Tribunal Registry, she was informed that the Tribunal had no record of having received the application. She wrote to the Registrar the next day, enclosing a copy. She was advised to make a submission to the Tribunal regarding the matter. This she did. She set out in an affidavit sworn on 26 September 1997 what had occurred. Then, on 29 September 1997, she forwarded to the Tribunal a statutory declaration sworn by the applicant on 26 September 1997. In that statutory declaration he set out in considerable detail, and effectively for the first time, the history of his activities in Sri Lanka, and the true basis for his claim to refugee status. 30 Ms Boyd anticipated, correctly as it turned out, that there would be difficulties in persuading the Tribunal that it had jurisdiction to consider the application for review. It had not been lodged as prescribed by s 412(1)(b) of the Act within the period of 28 days after the notification of the decision. Ms Boyd understood full well that the Tribunal might therefore have no power to extend the prescribed time for review. 31 For this reason, she wrote to the second respondent on 30 September 1997 requesting that he exercise the powers conferred upon him under s 48B of the Act. That section authorises the Minister to make a determination that an applicant who has been refused a protection visa may make another application for such a visa while still in the migration zone. Section 48A of the Act would otherwise prevent this from occurring. However, the Minister may only invoke s 48B if he thinks that it is in the public interest to do so. If he makes such a determination he is required to lay before each House of Parliament the determination and his reasons for having made it. The circumstances in which this power will be exercised are likely to be rare. 32 On 27 February 1998 Ms Boyd wrote again to the second respondent. On this occasion she requested him to direct the first respondent to vacate his decision of 24 July 1997. On 20 March 1998 she was informed that this request had been refused. 33 Subsequently, on 17 April 1998, the Minister advised Ms Boyd that, in response to her letter of 30 September 1997, he had decided not to exercise the powers conferred upon him by s 48B of the Act. In the meantime on 4 February 1998 the Tribunal, as expected, rejected the application for review, holding that it had not been lodged in time, and there was no jurisdiction therefore to entertain it. 34 Regrettably, the handling of the applicant's case by his legal representatives can fairly be described as something of a shambles. One can have some sympathy for Ms Boyd. She sought throughout to ensure that the applicant was not disadvantaged by the forthcoming amendments to the Regulations while, at the same time, having to confront the dilemma that, as at 30 June 1997, she had no sensible instructions upon which to base his application for a protection visa. However, her efforts to ensure that the applicant could continue in employment led her to adopt a course which was, with hindsight, dangerous. That course proved ultimately to be disastrous. All of her subsequent attempts to rectify the position failed. 35 The course of events set out above brings to mind certain remarks of Hill J made in a quite different context. In Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393 at 394 his Honour observed: "Murphy's law is sometimes stated as requiring that everything which can go wrong will go wrong. It has a sub-law. That is that when something goes wrong everything else thereafter goes wrong too. The present case demonstrates this sub-rule." 36 The fact remains that the applicant has never, at any stage, had his case considered on its merits. The question before the Court is whether, in the circumstances set out above, he can make good a case for relief against one, or other, of the respondents. As with most matters involving the legislative regime governing migration to this country the answer to that question is neither obvious, nor as simple, as it at first might seem. The applicant's contentions 37 Mr Hurley of counsel, who appeared on behalf of the applicant, submitted that the relief sought should be granted upon one or more of the following bases: · Mandamus should lie against each respondent because the provisions of the Act impose a duty on the second respondent (and upon the first respondent, as his delegate) to "have regard to all of the information" in an application for a visa - s 54(1) of the Act. That duty had not been discharged by the first respondent when he delivered his reasons for decision on 24 July 1997. The information in the application had included both the request by Ms Boyd for the name and telephone number of the responsible officer in order that the relevant material in support of the application could be provided to him, and the statement in answer to question 36 of Form C that this information would be provided "soon". The first respondent manifestly had not had regard to that information at all, or in any real sense. He had therefore, constructively, refused to perform his statutory duty. · Mandamus and certiorari should lie against each respondent because the applicant was denied procedural fairness. His application for refugee status was not considered properly, or at all. That application had been determined before he could provide the essential material in support of it. · Mandamus and certiorari should lie against each respondent because the decision of the first respondent, pursuant to s 65 of the Act, to refuse the applicant a protection visa upon the basis that he had "not presented any claims in his application" was so unreasonable, in the circumstances of this particular case, that no reasonable decision-maker could have arrived at it - Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229-30 per Lord Greene MR. Alternatively, the decision by the first respondent to determine the application without delaying the matter to give the applicant an opportunity to provide the material which was essential to his case, was unreasonable in the Wednesbury sense. 38 Mr Hurley also argued that each respondent had failed to discharge an obligation to act fairly towards the applicant. The source of the obligation was said to be "implicit in the scheme of the Act", and to be quite separate from the requirements of procedural fairness alluded to above. He conceded, however, that whatever be the force of this submission, this limb of his argument could not succeed independently of the matters set out above. The point was not pressed, and I need not return to it. The respondent's contentions 39 Mr Tracey QC, who appeared on behalf of the second respondent, submitted that the relief sought should be refused because: · There was nothing to suggest that the first respondent had not had "regard to all of the information" in the visa application. It should not be inferred that the first respondent had not read, or had not read properly, Ms Boyd's letter of 30 June 1997, and the answer provided by the applicant to question 36, in Form C. The statutory duty imposed upon the first respondent had accordingly been discharged. Moreover, his decision to refuse the protection visa was plainly correct, having regard to the material placed before him. · The general structure of the Act and the Regulations made it plain that there was no duty to delay making a decision in respect of the application for a protection visa until the applicant has provided all of the information which should have been provided in the first place. The applicant must be taken to have been aware that he was required to provide all relevant information, upon which he intended to rely, in his application form. The requirement that all relevant information be provided was spelt out in clear terms at the very beginning of Form C. Regulation 2.07(3) provides that an applicant must complete an approved form in accordance with any directions on it. This particular direction had been clear, and unequivocal. Applications for protection visas were intended to be dealt with promptly. An applicant was given one opportunity only to place before the Minister all of the material upon which he relied - and that was in the application for a visa itself. The only qualification to this general principle was to be found in s 55(1) of the Act. That subsection did not require the decision-maker to defer consideration of the matter while "further" information was provided - s 55(2). Any suggestion that the rules of natural justice required the first respondent to await the proper presentation of the applicant's case would thwart the legitimate objectives of the Act. These were to ensure that such applications were dealt with "fairly, efficiently and quickly" as stipulated in Subdivision AB - the heading to the code of procedure which followed. Moreover, ss 54(3) and 55(2) demonstrated a clear legislative intent to abrogate the rules of natural justice in relation to visa applications. They provided an all embracing set of procedures by which the treatment of such applications was to be governed. · It could not be said that the first respondent's decision on 24 July 1997 to refuse the applicant a protection visa upon the basis that he had "not presented any claims in his application" was so unreasonable that no reasonable decision-maker could have taken that decision. He had deferred making a decision for over three weeks after receiving the application. That period was itself reasonable in all the circumstances. Findings of Wednesbury unreasonableness are rarely made. Moreover, the first respondent would have been entitled to conclude that, notwithstanding the applicant's failure to provide him with any supporting material to ground his claims to refugee status, he might seek to maintain his claims on review to the Tribunal. Thus the merits of his case could still be considered, at a later stage, upon proper material. The first respondent was not to know that the applicant's legal representatives would fail to lodge within time with the Tribunal an application for such review. 40 It is convenient to deal with each of the competing contentions in the order set out above.

Duty to have regard to all of the information in the application 41 It is necessary to set out some of the provisions of the Act upon which the applicant relies in support of this contention. 42 Section 47(1) provides that: "The Minister is to consider a valid application for a visa." Subdivision AB of the Act contains ss 52 to 64 and is headed "Code of procedure for dealing fairly, efficiently and quickly with visa applications". Section 54 provides: "(1) The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application. (2) For the purposes of subsection (1), information is in an application if the information is: (a) set out in the application; or (b) in a document attached to the application when it is made; or (c) given under section 55. (3) Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions." (emphasis added) 43 Section 55 provides: "(1) Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision. (2) Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information." 44 Section 56 provides: "(1) In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa. (2) Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way." 45 It is plain that the duty which the Act imposes upon the Minister to "have regard to all of the information in the application" when deciding whether to grant or refuse to grant a visa is mandatory. The use of the word "must" in s 54(1) really admits of no other conclusion, particularly having regard to the fact that the provisions which surround that section plainly distinguish between the imposition of such a duty, and the conferral upon the Minister of a discretion by the use of the word "may" - see for example ss 51(1), 56(1), 62(1) and 63(1). 46 There is a considerable body of authority to support the proposition that expressions such as "shall have regard to" impose a duty rather than a discretion - see for example The Queen v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 per Mason J; Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 194; and note in particular Posner v Collector for Inter-State Destitute Persons (Vic) (1946) 74 CLR 461 at 490 per Williams J where his Honour observed: ""Must" is a word of absolute obligation and occurs in a section which is concerned with a fundamental principle of justice. It is not merely directory." 47 Mr Hurley conceded, however, that whether or not s 54(1) imposed a duty upon the second respondent involved a matter of construction. The word "shall" has, in context, been held not to impose a duty - Langer v The Commonwealth (1996) 186 CLR 302 at 337 per McHugh J. 48 The classification of statutory provisions as mandatory or discretionary is, in any event, now regarded by the High Court as an exercise which diverts attention from the proper inquiry. The better approach is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 ALJR 841 at 860. 49 I did not understand Mr Tracey QC to resist the contention that the word "must" in s 54(1) of the Act imposed a duty upon the second respondent to "have regard to all of the information in the application". To adopt the language of the High Court in Project Blue Sky Inc (supra), the failure of the second respondent to do what s 54(1) stipulated he "must" do would, by reason of the proper construction of the subsection, lead to an invalidity of his decision to refuse the applicant a protection visa. I therefore accept Mr Hurley's submission that the second respondent was subject to the duty set out above. 50 Mr Hurley then contended that the duty will not be discharged where the Minister has not "had regard to all the information in the application" "in any real sense". Mr Hurley relied upon an observation of Toohey J in Turner v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 388 at 392 in support of this submission. The passage in question deals with an alleged failure by the Minister to take into account relevant considerations. However, it seems also to be applicable to the statutory duty imposed under s 54(1) of the Act. The requirements imposed upon the Minister, through his delegate, cannot be said to have been met if no proper consideration has been given to all the information in question. I am prepared to accept that the duty so imposed is not discharged if no realistic regard is had to that information. 51 The information to which the Minister must have regard includes information which is "in an application". By virtue of 54(2) of the Act, this includes information in a document attached to the application when it is made. Ms Boyd's letter of 30 June 1997 was such a document. It follows that the first respondent was required when deciding whether to grant or refuse the visa to have regard to Ms Boyd's request for the name and telephone number of the relevant officer so that the provision of further material in support of the application could be arranged. 52 The next stage in the applicant's submission is that it should be inferred that the first respondent had not had regard to the information when he decided to refuse the applicant a protection visa. Mr Hurley contended that the first respondent had not, "in any real sense" had regard to all of the information in the application when he delivered his reasons for decision. That was either because he had not read the material in the first place, or had forgotten that it had been provided. 53 I do not accept the submission formulated in this way. It is entirely implausible that the first respondent would not have read the applicant's answer to question 36 when he dealt with the application. His reasons for decision demonstrate that he had read at least some part of the application. He could not have known that the critical material had not been provided unless he read the relevant parts as well. He was obviously aware that the applicant proposed to answer questions 36 to 40 at a later time, albeit "soon". 54 It is less clear whether or not the first respondent read Ms Boyd's letter prior to delivery of his reasons for judgment. On balance, I think the likelihood is that he did. The letter should have been on the applicant's file, attached to the application. I certainly would not be prepared to infer that it escaped his attention. 55 In summarising the evidence before him the first respondent stated that he had relied upon all folios in departmental file V97/760. That file reference accorded with the correspondence file reference relating to the applicant. As has been noted, Ms Boyd's letter of 30 June 1997 was addressed to the Manager of the Onshore Refugee Program in the Department of Immigration and Multicultural Affairs, in Melbourne. The first respondent wrote to Ms Boyd on 24 July 1997 on departmental letterhead which specifically included a reference to the Onshore Refugee Program located at the address to which Ms Boyd had sent her letter. In those circumstances, it is reasonable to infer that the letter was read by the first respondent. 56 I would not be prepared to infer that, in the short period between the time that the application was lodged, and the date of the decision (approximately three weeks) the first respondent forgot that the applicant proposed to provide the information omitted from his application for a protection visa. I think that any such contention borders on the fanciful. 57 The greater likelihood is that the first respondent, though aware of the fact that the applicant had foreshadowed the delivery of material to support his claim to refugee status, simply determined that he would decide the application without waiting to receive that material. Plainly, he did not consider it necessary to afford the applicant any warning that his decision was imminent, or any opportunity before that decision was made to provide the material that was lacking. 58 Such a process of reasoning can, in my view, properly be described as a failure to "have regard to all of the information in the application". The expression "have regard to" must, in context, mean "take into account". It does not, of course, require the recipient of the information to accept it as true, to act upon it, or even ultimately to be influenced by it - Hoare v The Queen (1989) 167 CLR 348 at 365. It does, however, require the recipient of the information to consider it properly in the context of performing the statutory duty imposed upon him, and to which the information to be considered is directed, namely, deciding whether the applicant is a person who genuinely fears persecution for a Convention reason, and who can demonstrate that this fear is well-founded. 59 In a related context, it has been said by Merkel J in Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 57 that: "Closely related to that duty arising under s 420 is the duty of a decision-maker or tribunal to give the questions before it for its determination "proper, genuine and realistic consideration upon the merits": see Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J; Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1 at 12-15; 91 ALR 586 per Sheppard J; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 482-3; 98 ALR 180 per Gummow J; Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 at 96 per Hill J; Mocan v Refugee Review Tribunal (1996) 42 ALD 241 at 245 per Merkel J. Independently of s 420, the RRT must apply itself to the question which the law prescribes. If the RRT misconceives its duty or fails to address the correct legal question committed to it by not applying itself to all the issues it is required to consider in determining the matter before it, there will have been a purported, but not real, exercise of its functions and jurisdiction. In such circumstances there will have been a constructive failure by the RRT to exercise its jurisdiction; see Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR(NSW) 416 at 420 per Jordan CJ; Sinclair v Mining Warden at Maryborough (1975) 5 ALR 513; 132 CLR 473 at 480 per Barwick CJ and at 483 per Gibbs J; Guo v Minister for Immigration and Ethnic Affairs at FCR 165-6 per Beaumont J and Guo (on appeal in High Court) at ALR 581 and Calado at 21-2." 60 To conclude, as the first respondent did, that because the applicant had not presented any material to support his claim to refugee status, any harm that he might fear could not be of sufficient gravity to amount to persecution within the terms of the Convention was not, in any real sense, to give proper consideration to that claim, but rather to engage in what might almost be described as an elaborate charade.

The denial of procedural fairness contention 61 The applicant contends in his grounds in support of the various writs sought that the decision of the first respondent to refuse him a protection visa was made in breach of the rules of natural justice. In particular, Mr Hurley submits that the failure of the first respondent to advise Ms Boyd that he was the person to whom the material which was essential to the applicant's case should be provided meant that the application had been determined without the applicant having had any effective opportunity to be heard. At the very least, he submitted, Ms Boyd's letter of 30 June 1997 called for a prompt, if not immediate, response. It could not simply be ignored while the first respondent went about deciding the application, knowing that the material necessary to support it had not yet been supplied. 62 It is necessary to refer briefly to some of the recent pronouncements of the High Court in relation to the principles governing the requirements of natural justice. These requirements are now more commonly described as the duty to accord procedural fairness. In Kioa v West (1985) 159 CLR 550 at 584 Mason J stated: "The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention." 63 His Honour also stated at 585: "The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?" 64 His Honour continued: "In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations." 65 Subsequent decisions of the High Court have developed these principles still further. See Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 653 per Deane J; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 20-21 per Mason CJ, and at 57 per Dawson J; Annetts v McCann (1990) 170 CLR 596; and Ainsworth v Criminal Justice Commission (1992) 175 CLR 564. 66 Obviously, the first respondent could not refuse the applicant a protection visa without affording him some right to be heard. The nature and extent of that right is to be ascertained from the legislative scheme, taken as a whole, construed in the light of the principles of common law which have developed in this regard. It is plain that the right to be heard can only be abrogated by a clear manifestation of legislative intent. 67 There can be no doubt that Part 8 of the Act contains a number of provisions which, in migration matters, limit the scope for review of decisions by the Federal Court. One issue which must be resolved is whether the limitations upon the grounds for review of a judicially-reviewable decision by the Federal Court which are contained in that Part operate to prevent the Court from entertaining the natural justice and Wednesbury unreasonableness grounds presently relied upon. 68 It is necessary to set out some of the relevant provisions in Part 8 in some detail. They are as follows: 475. (1) Subject to subsection (2), the following decisions are judicially-reviewable decisions: … (b) decisions of the Refugee Review Tribunal; (c) other decisions made under this Act, or the regulations, relating to visas. (2) The following decisions are not judicially-reviewable decisions: …. (d) an RRT-reviewable decision; …" (emphasis added) "476. (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: (a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; (b) that the person who purported to make the decision did not have jurisdiction to make the decision; (c) that the decision was not authorised by this Act or the regulations; (d) that the decision was an improper exercise of the power conferred by this Act or the regulations; (e) that the decision involved an error of law, an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision; (f) that the decision was induced or affected by fraud or by actual bias; (g) that there was no evidence or other material to justify the making of the decision. (2) The following are not grounds upon which an application may be made under subsection (1): (a) that a breach of the rules of natural justice occurred in connection with the making of the decision; (b) that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power." "485. (1) In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by subsection 475(2), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903. (2) Subsection (1) does not affect the jurisdiction of the Federal Court in relation to appeals under section 44 of the Administrative Appeals Tribunal Act 1975. (3) If a matter relating to a judicially-reviewable decision is remitted to the Federal Court under section 44 of the Judiciary Act 1903, the Federal Court does not have any powers in relation to that matter other than the powers it would have had if the matter had been as a result of an application made under this Part." 69 The matter before me has been remitted by the High Court under s 44 of the Judiciary Act. The decisions which are attacked, being those of the first and second respondents, are "RRT-reviewable". They are not, therefore, "judicially-reviewable" within the meaning of that expression in ss 474 and 475(1) of the Act. 70 The grounds upon which application may be made for review by the Federal Court under s 476(1) are confined to the review of "judicially-reviewable" decisions. The provisions excluding as grounds of review denial of natural justice and Wednesbury unreasonableness contained in s 476(2)(a) and (b) are also limited to the review of such decisions. Those provisions have no application, therefore, to the decisions of the first and second respondents. 71 It has been suggested that s 485(3) of the Act prevents this Court, when exercising its powers on remitter, from considering grounds of review which are excluded by s 476(2)(a) and (b): Thambythurai v Minister for Immigration and Multicultural Affairs [1997] FCA 997. There Finkelstein J observed, without deciding, that the word "powers" in s 485(3) was "likely" to include the grounds upon which the Court is able to review a decision of the Tribunal, and not merely the form of relief which may be granted when it has been shown that errors of law vitiated the decision. In Cam Mui Chi v Minister for Immigration and Multicultural Affairs & Anor [1998] FCA 692 Mansfield J indicated that he was also inclined to that view, though his Honour did not find it necessary to answer that question. 72 With great respect, I differ from their Honours in this regard. In my view, nothing in s 485(3) of the Act prevents this Court, when exercising the powers conferred upon it by virtue of s 44(1) of the Judiciary Act, from considering all grounds of review available in the High Court under s 75(v) of the Constitution. That view finds support in Dinnison v Commonwealth (1997) 74 FCR 184. This Court exercises in a "derivative or surrogate fashion" the jurisdiction of the High Court in respect of the proceedings - Commonwealth v Mewett (1994) 126 ALR 391 at 401-2. In Cam Mui Chi v Minister for Immigration and Multicultural Affairs & Anor (supra) Mansfield J held that once this Court had jurisdiction to entertain the matter by reason of remitter it could apply its own practice and procedure as appropriate. His Honour noted also that it had been stated that remitter by the High Court is not intended to enhance or diminish the rights of one or other of the parties to the litigation: Robinson v Shirley (1982) 149 CLR 132 at 136 per Brennan J. Mansfield J's observations, and his reference at this point of his judgment to the statement of Brennan J, are not consistent with there being any restriction on the grounds of review available at common law when a matter under s 75(v) of the Constitution is remitted to this Court. 73 Subsection 485(3) of the Act provides that this Court does not have any powers in relation to the matter on remittal other than the powers it would have had if the matter was before the Court as a result of an application made under Part 8. It does not, however, in my opinion, confine the jurisdiction of the Court, or the grounds upon which that jurisdiction may be exercised. The jurisdiction of this Court on remitter derives from s 44 of the Judiciary Act, not Part 8 of the Act. Remittal to this Court of this matter is, of course, possible under s 44 because this Court has jurisdiction of its own with respect to the subject matter and the parties - s 39B of the Judiciary Act. 74 The Court's powers under s 485(1) exist in relation to review of "judicially-reviewable" decisions. The decisions being reviewed in this case do not fall within that description. Subsection 485(3) may be seen to operate to make the Court's powers under s 481 only, and not the High Court's power to grant the prerogative writs as such, available in respect of matters remitted from the High Court. On that construction, the matter remitted becomes a proceeding in this Court, to be determined in all respects in accordance with this Court's procedures, and in accordance with the provisions of the Act insofar as they impinge upon those procedures. The remedies available to this Court are those statutory remedies available under s 481, and not the writs themselves. That was the view expressed by Finkelstein J in Thambythurai (supra). 75 Another possibility is that s 44(3)(b) of the Judiciary Act (which makes remittal subject to any directions of the High Court) enables this Court, if appropriate directions are given, to grant the same remedies as are available in the High Court: Pozniak v Smith (1982) 151 CLR 38 at 44. No directions enabling that course to be adopted were given by Hayne J in the present case. I shall return to the question of the relief to be granted later in these reasons for judgment. It is sufficient for present purposes to say that s 485(3) does not, in my view, operate to prevent the applicant from relying upon a failure by the first respondent to accord procedural fairness. 76 Notwithstanding Mr Tracey's helpful and cogent submissions, I do not discern in ss 54(3) or 55(2), of the Act any clear manifestation of legislative intent to deny the applicant an opportunity to have his application for a protection visa considered in a fair and meaningful way. 77 Subsection 54(3) is concerned with whether or not an applicant must be given an opportunity to make oral or written submissions in addition to the information contained in his application. It provides that a decision to grant or refuse to grant a visa may be made without giving the applicant such an opportunity. It does not follow from this that a protection visa may be refused without giving an applicant a reasonable opportunity to provide all of the information upon which he intends to rely in support of his application. It is not an adequate response, in my view, to say that the applicant was given such an opportunity and, by not providing the information required in questions 36 to 40, chose not to avail himself of it. 78 I do not suggest that the first respondent was obliged to await the information foreshadowed by the applicant in his answer to question 36 before considering the applicant's case. He would ordinarily have been entitled to deal with the application as it stood when he came to consider it. If that meant, at the end of the day, that it had to be rejected, so be it. 79 He was not entitled, however, to reject the application without informing Ms Boyd that her request for additional time to supply the requisite information (which was implicit in her letter of 30 June 1997) had been refused. Had he informed Ms Boyd of that fact, she would have known that the applicant had to provide that information at once if it was to be considered. She would then have been able to provide such information as was then available, pursuant to s 55(1) of the Act. 80 Ms Boyd's letter, and the request implicitly contained therein, meant that she was entitled to assume that she would either be provided with the name and telephone number of the relevant officer handling the matter, or that she would be informed that any decision in relation to the application would not await the provision of the information which had been foreshadowed. The Department's failure to respond to her letter was, in all the circumstances, inexcusable. 81 An application for a protection visa is not to be viewed as some sort of contest between the applicant and the Department. Whether or not an applicant is granted a protection visa is a matter of fundamental importance. It is no overstatement to say that it may even be a matter of life and death. Any officer responsible for dealing with such matters must treat such applications with great care, and with the utmost fairness. Mr Tracey, while not disputing these general principles, reminded me that this is not a perfect world. As he put it, there are thousands of applications, and they cannot always be accorded the care and attention which they might, ideally, merit. That, of course, is true. There are, however, certain basic requirements which cannot be overlooked. The approach taken to this application by the first respondent failed to satisfy those basic requirements. 82 Whether or not Ms Boyd acted wisely in permitting the application to be lodged without setting out at least some of the material upon which the claim for refugee status was based is not to the point. She wrote a perfectly proper letter to the Department seeking the name and telephone number of the relevant officer handling the matter. That letter intimated quite plainly that she would arrange for the relevant material to be provided once that information had been supplied. If her letter was based upon a misconception as to the manner in which the Department normally dealt with such applications, it was a misconception which, in the particular circumstances of this case, the first respondent had a positive duty to dispel. 83 It is true, of course, that the legislative regime which governs applications for visas is designed to ensure that they can be determined quickly and efficiently. To that end, each such application should ordinarily contain all relevant information. Indeed, the applicant declared in his application form that the information which he had supplied was complete, correct and up-to-date in every detail. Nonetheless, it was obvious to the first respondent that the information supplied was far from complete. I would not treat the applicant's declaration as in any way affecting the disposition of this proceeding. 84 I cannot accept that the legislative scheme dealing with applications for visas, taken as a whole, manifests a clear intent to abrogate the common law requirements of procedural fairness. Nor can I accept that the course adopted by the first respondent in failing to alert Ms Boyd to the possible consequences of not immediately providing the material essential to make good the applicant's case accords with what lay within the contemplation of Parliament when it enacted these provisions. 85 I do not accept that s 55(2) of the Act discloses clearly, and unambiguously, a legislative intent to abrogate the right to place before the Minister such information as may be essential to support a claim for a protection visa unless that information is included in its entirety within the visa application. That subsection is, in my opinion, intended to enable the Minister to deal with an application which is, in substance, complete. The Minister is not then required to defer the making of a decision while the applicant either provides, or professes to provide, supplementary information. The word "further" immediately preceding "information" in s 55(2) makes this clear. Plainly, there are some applicants who might be tempted to abuse the system by seeking to "buy time" while their applications are processed by "drip feeding" material in support of their claims. Subsection 55(2) is the appropriate legislative response to such cases. 86 Where, however, the information which is plainly essential to support an application has not been provided in the application itself, but has been clearly foreshadowed, in the manner set out above, it is contrary to all principles of justice for the decision-maker simply to ignore that fact, and to proceed, without awaiting that information, to deliver a decision rejecting that application. 87 It follows that, in my opinion, Mr Hurley's contention that the conduct of the first respondent denied the applicant procedural fairness should be upheld.

The unreasonableness ground 88 For the reasons set out above, I accept Mr Hurley's submission that s 476(2)(b) of the Act, which provides that Wednesbury unreasonableness is not a ground upon which an application for review may be made to the Federal Court, has no application in respect of the decisions under review. They are not "judicially-reviewable" decisions. The restrictions as to grounds of review contained in s 476(2)(a) and (b) have no application to matters dealt with, or remitted, under s 44 of the Judiciary Act. 89 It will, of course, be rare that the decision of an administrative decision-maker will be set aside on the basis of Wednesbury unreasonableness. The requirements which must be met to invoke that ground of review are, and ought to be, stringent. They seem to me, however, to be met in this case. For the first respondent to have rejected the application for a protection visa on the basis that he did in circumstances where it was clearly foreshadowed that the information would be supplied "soon", after the applicant's legal representative had been supplied with the name and address of the person who would be handling the case was, in my view, conduct which was unreasonable in the Wednesbury sense. 90 It is, of course, important to ensure that a Court engaged in the task of judicial review does not transgress into the realm of merit review - Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41; Attorney-General (NSW) v Quin (supra). See generally M Aronson and B Dyer, Judicial Review of Administrative Action 1996 at 361-375. It is always tempting to treat a decision with which one disagrees strongly as unreasonable. It is then tempting to characterise such a decision as so unreasonable that no reasonable decision-maker could have arrived at it. That temptation must, of course, be resisted. I have endeavoured to avoid succumbing to it. In the present case, however, adopting even a narrow view of Wednesbury unreasonableness, I have come to the conclusion, somewhat reluctantly, that no reasonable decision-maker could have acted as the first respondent did. His unreasonableness was, in my view, both manifest, and extreme. His conduct was, to use the language of Einfeld J, "unprincipled" - Premalal v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 117 at 136-140. 91 I am unable to accept Mr Tracey's submission that the first respondent's actions were not unreasonable in the Wednesbury sense because he delayed delivering his reasons for decision for just over three weeks. Ms Boyd's letter of 30 June 1997 provides the answer to that contention. That letter could not be ignored. Nor am I persuaded by Mr Tracey's submission that the first respondent did not act unreasonably in the relevant sense because he was entitled to assume that, if he rejected the applicant's claim upon the basis that there was no material to support it, the matter could simply be cured by merits review in the Tribunal. I can see no social utility in expecting an appellate body to do again that which should have been done properly in the first place. A simple telephone call, or a letter in response to Ms Boyd's letter, would have obviated the need to involve the Tribunal, the Minister (twice), the High Court, and this Court in lengthy, complex and costly proceedings. Common sense, and basic fairness, should have caused the first respondent to respond to Ms Boyd's request, and not to ignore it.

Conclusion 92 The applicant has made good his contention that the first respondent did not, in any relevant sense, "have regard to all of the information in the application" in dealing with the applicant's claim for a protection visa. He has also succeeded in his contention that he was denied procedural fairness, and in his contention that the actions of the first respondent were so unreasonable as to fall legitimately within the boundaries of judicial review. 93 The application for prerogative relief was, of course, brought considerably out of time. An order nisi for certiorari must be made within six months of the decision which is sought to be quashed, while an application for a writ of mandamus must be brought within two months of the date of refusal to hear and determine the matter. It cannot, however, be said that the applicant slept upon his rights from the time he discovered that the first respondent had refused his application for a protection visa. He endeavoured, albeit outside the strict time limits prescribed by the Act, to review the first respondent's decision before the Tribunal. He learned in February 1998 that the Tribunal had rejected that application. He also made representations to the second respondent in September 1997 and February 1998 to direct the first respondent to re-hear his application, and to have the second respondent make a determination under s 48B of the Act. It was only when these steps had all failed that, in May 1998, he sought relief in the High Court pursuant to s 75(v) of the Constitution. 94 Mr Tracey submitted that the applicant had not made out any case for the granting of an extension of time. He did not, however, submit that there was any particular prejudice to the second respondent if time were extended within which to seek prerogative relief. The High Court has power to extend time - O 60 r 6 (Certiorari) and O 55 r 30 (Mandamus) - High Court Rules. So also does this Court. In my view, time should be extended. 95 It was not contended that the absence of any reference to certiorari or to declaratory relief in s 75(v) of the Constitution meant that these remedies were not available in the present case. Plainly, mandamus, being expressly identified in s 75(v), would have been available had this matter remained in the High Court. Certiorari might also have been required to quash the decision of 24 July 1997 before the decision-maker could be ordered to consider again, according to law, the applicant's claims to refugee status. Prohibition too was sought. While not itself appropriate, it could not be said to have been sought in a "merely colourable" way. Declaratory relief might also have been seen as appropriate as a means of "quelling" the "controversy" between the parties - Fencott v Muller (1983) 152 CLR 570 at 608-9; Re Keely; ex parte Kingham (1995) 129 ALR 255; Ainsworth v Criminal Justice Commission (supra) at 581. 96 In my opinion, by reason of the operation of s 485(3) of the Act, the only orders which this Court is empowered to make on this remitter are those for which provision is made in s 481. 97 I would therefore order, pursuant to s 481(1)(a) of the Act, that the decision of the first respondent of 24 July 1997 refusing the applicant a protection visa be quashed with effect from 24 July 1997. I would further order, pursuant to s 481(1)(b) of the Act, that the applicant's application for a protection visa of 30 June 1997, together with such material as the applicant now desires to file in support of that application, and such material, if any, to be filed within 21 days of the delivery of these reasons for judgment, be referred to the first respondent, or any other person nominated by the second respondent, for further consideration. 98 The second respondent should pay the applicant's costs. These costs include the costs of the proceedings in the High Court before his Honour, Hayne J who ordered that they be costs in the cause. I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Solicitor for the Applicant: Erskine Rodan and Associates

Counsel for the Second Respondent: Mr RRS Tracey QC

Solicitor for the Second Respondent: Australian Government Solicitor

Date of Hearing: 10 December 1998

Date of Judgment: 17 March 1999

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