Applicant SZANA v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an appeal from orders made by a Federal Magistrate on 18 August 2003 dismissing the appellant's application and ordering him to pay the respondent's costs fixed at $6,000. Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) the Chief Justice has directed that the appeal be heard by a single Judge of the Court. 2 The surrounding circumstances are of some complexity, both factual and procedural. 3 For the purposes of clarity I will go immediately to the substance of the appellant's claim and return in due course to the treatment of the matter by the learned Federal Magistrate. That is not intended to be any reflection upon the reasons of the Magistrate. 4 The appellant is a citizen of Turkey who entered Australia on 20 October 1987. 5 On 1 July 1997 the appellant lodged parts B and C of an application for a protection visa. Within these pages there was no expression by the appellant of the basis of, or claims to support, the application for a protection visa. 6 On 10 July 1997 a delegate of the respondent refused the grant of a protection visa. The delegate noted that the appellant had not advanced any claims. 7 Also on 10 July 1997 the "Onshore Protection" section of the Department of Immigration and Multicultural Affairs in Sydney received a two page hand-written document in Turkish from the appellant. The English translation of this document (together with the note of the level 3 NAATI accredited translator) was as follows: To Whom It May Concern (I request full translation into English please) 1. Sir, I, [appellant], am a Turkish citizen with Kurdish background who has been living in Australia for 10 years. 2. In 1989 I entered Australia by air (with) international navigation transit visa under the international navigation legal rights. Political refuge status into any country and my United Nations human legal rights status existed… Because my life faced death and threat of pressure, returning to Turkey presents danger for my life. 3. Parramatta Immigration Office has only kept my passport. As they knew that I have lawful and legal rights they did not arrest me but released me. As my passport was kept by the immigration office 10 years ago, they deprived me of my passport, which is my overseas identification (card). So, as I have not had an overseas identification (card), I have been deprived of shipping rights. I have applied to obtain an Australian visa through immigration lawyers for a number of times. I have been in Australia for 10 years because I do not know my legal rights. 4. Being of Kurdish background in Turkey and… Because of the political and life death threats I have been subjected to, my situation is to do with having refuge rights. If I was in Turkey, I would not have been living now. I owe this right to live to the country of Australia. Therefore, I owe respect and friendship wishes. 5. I have adapted to Australia and never committed any crime. 6. Being a Turkish citizen of Kurdish background… The public opinion knows that many unknown political deaths exist. I, too, am one of those who face a political death. I ask for the former navigation transit status visa to be replaced by new political refuge status visa. 7. I understand, speak and read English well. Also, apart from making use of legal guarantor's rights and believing in the supremacy of the law and justice, I submit with my respects. [appellant's name] Signed (Translator's Note: Above letter is full of grammar mistakes and half-finished sentences that would pose a great difficulty for any translator. This must be taken into consideration when the translation is evaluated) 8 Notwithstanding these comments of the translator, it was tolerably plain that the appellant's claim for a protection visa was based on his Kurdish ethnicity or nationality or race and his fear of persecution in Turkey on that account. 9 On 22 October 1998 the Refugee Review Tribunal (the Tribunal) affirmed the delegate's decision to refuse the application as amended. 10 On 7 April 1999, Mathews J dismissed an application for review. The appellant did not file a notice of appeal from the orders made by Mathews J within time. 11 On 5 May 1999, the appellant applied to the Minister for a more favourable decision under s 417 of the Migration Act 1958 (Cth) (the Act) and for permission to make a fresh application under s 48B of the Act. 12 On 10 August 1999, the appellant was notified by letter that the request in respect of s 48B would not be referred to the Minister, the Minister's guidelines in respect thereof having been considered, and that the dealing with his request under s 417 had not been completed. 13 On 19 November 1999, the appellant was notified that his request in respect of s 417 had been referred to the Minister, but that on 14 November 1999 the Minister had decided not to consider exercising his power in this case. 14 By mid-December 1999 the appellant's bridging visa ceased to be in effect. 15 The appellant was detained at Villawood on 28 February 2003. 16 On 17 March 2003, the appellant applied for a bridging visa. This application was refused by a delegate on the following day. 17 On 21 March 2003, the appellant sought permission to make a second protection visa application. This application had a four page typed statement signed by the applicant and dated 14 January 1998. In it the appellant explained his claims for asylum as a Kurd from Turkey, explained various aspects of his stay in Australia and emphasised that he had been a law-abiding resident. He concluded the statement with the following two paragraphs: The circumstances in Turkey - for me and for many Kurdish friend like me - are inappropriate to live. Since I have no life security in Turkey, I owe my life to Australia. I prefer to die for the interest of Australia rather than going back to Turkey where I will be killed in tortures by the Turkish authorities. I declare that the content of my statement is true and correct. Based on my statement, I request my case to be referred back to Refugee Review Tribunal in order to be given a fair justice. I would like to be given another opportunity be assessed as a refugee. 18 By letter dated 21 March 2003, an officer of the Department advised the appellant that he did not fall within the Minister's guidelines and that his further request under s 48B would not be referred to the Minister. 19 Before continuing with the facts which, thereafter, become somewhat confused, it is appropriate to stop at this point and assess the appellant's legal position. 20 The forms lodged on 1 July 1997 without the expression of any claims, amounted to an incomplete or inchoate application. There was no valid application at this time: Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495, 499 [19] per Spender J and 509 [72] per Gyles J and Nader v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 352, 364-65 [51]-[56]. 21 These conclusions conform to the requirements of the Migration Regulations made relevant by ss 45 and 46 of the Act. The relevant regulations, 2.07 and 866.21, were also set out by Spender J in Yilmaz at 498-99. There was no suggestion before me that the statutory framework had relevantly changed since the decision in Yilmaz. 22 Consequently, the delegate in July 1997 was obliged not to consider the appellant's application before receiving the appellant's "specific claims": s 47(3) of the Act. The delegate should not have dealt with the application when he did. 23 The specific claims were received by the Department (not the Tribunal) on 10 July 1997, (in the form of a two page hand-written document) thereby making the application a valid one, capable of being considered: Yilmaz, and Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486, esp 503 [77]. The Tribunal thereafter dealt with the appellant's claims on review. 24 The Full Court dealt with this precise circumstance in Yilmaz. For the reasons expressed by Spender J, see especially 499 to 500 [22] to [25] and Gyles J in Yilmaz, the Tribunal had authority to deal with the application now that it contained specific claims under and referable to the Convention. 25 Here, the application, fleshed out by the claims made in the two page hand-written document received on 10 July 1997, substantially complied with the requirements of reg 866.21. A clear Convention reason based on ethnicity or race or nationality was enunciated. This was sufficient when read with the balance of the papers submitted to constitute an application: Bal v Minister for Immigration and Multicultural Affairs (2002) 189 ALR 566, esp 573-74 [35]-[42]. 26 The decision of the Tribunal was expressed in the following terms: The Tribunal affirms the decision not to grant a protection visa. 27 For the reasons expressed by Spender J and Gyles J in Yilmaz, the Tribunal was authorised to undertake its statutory task once there was a valid application (the inchoate application having been completed by the document received by the Department on 10 July 1997). The Tribunal's powers were set out in s 415 of the Act, which was in the following terms: (1) The Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision. (2) The Tribunal may: (a) affirm the decision; or (b) vary the decision; or (c) if the decision relates to a prescribed matter - remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or (d) set the decision aside and substitute a new decision. (3) If the Tribunal: (a) varies the decision; or (b) sets aside the decision and substitutes a new decision; the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister. (4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations. 28 Whilst the delegate was not authorised to consider the application in the form before him, the Tribunal was so authorised; and, in dealing with the merits of the claims as it did, was authorised to reach the same conclusion: that it was not satisfied that Australia owed protection obligations to the appellant within the meaning of ss 36 and 65 of the Act, and thereby to "affirm" the delegate's decision. 29 Section 48A of the Act was in the following terms: (1) Subject to section 48B, a non-citizen who, while in the migration zone, has made: (a) an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or (b) applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined); may not make a further application for a protection visa while in the migration zone. (1A)For the purposes of this section, a non-citizen who: (a) has been removed from the migration zone under section 198; and (b) is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d) or (e); is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a). (1B)Subject to section 48B, a non-citizen in the migration zone who held a protection visa that was cancelled may not make a further application for a protection visa while in the migration zone. (2) In this section: application for a protection visa includes: (aa) an application for a visa, a criterion for which is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; and (ab) an application for a visa, a criterion for which is that the applicant is a non-citizen in Australia who is the spouse or a dependant of a non-citizen in Australia: (i) to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; and (ii) who holds a protection visa; and (a) an application for a visa, or entry permit (within the meaning of this Act as in force immediately before 1 September 1994), a criterion for which is that the applicant is a non-citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol; and (b) an application for a decision that a non-citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; and (c) an application covered by paragraph (a) or (b) that is also covered by section 39 of the Migration Reform Act 1992. 30 The appellant has not left the migration zone since his arrival in 1987. While in the migration zone the appellant made a valid application for a protection visa and that application was refused by the Tribunal. In those circumstances, subject to s 48B, the appellant was not permitted to make a further application while in the migration zone. 31 Section 48B was in the following terms: (1) If the Minister 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 section 48A does not apply to prevent an application for a protection visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given. (2) The power under subsection (1) may only be exercised by the Minister personally. (3) If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that: (a) sets out the determination; and (b) sets out the reasons for the determination, referring in particular to the Minister's reasons for thinking that his or her actions are in the public interest. (4) A statement under subsection (3) is not to include: (a) the name of the non-citizen; or (b) any information that may identify the non-citizen; or (c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned - the name of that other person or any information that may identify that other person. (5) A statement under subsection (3) is to laid before each House of the Parliament within 15 sitting days of that House after: (a) if the determination is made between 1 January and 30 June (inclusive) in a year - 1 July in that year; or (b) if the determination is made between 1 July and 31 December (inclusive) in a year - 1 January in the following year. (6) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances. 32 I have already referred to the fate of the appellant's applications under s 48B. 33 Section 417 provided for the Minister making a more favourable decision. It was in the following terms: (1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. (2) In exercising the power under subsection (1) on or after 1 September 1994, the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act. (3) The power under subsection (1) may only be exercised by the Minister personally. (4) If the Minister substitutes a decision under subsection (1), he or she must cause to be laid before each House of the Parliament a statement that: (a) sets out the decision of the Tribunal; and (b) sets out the decision substituted by the Minister; and (c) sets out the reasons for the Minister's decision, referring in particular to the Minister's reasons for thinking that his or her actions are in the public interest. (5) A statement made under subsection (4) is not to include: (a) the name of the applicant; or (b) any information that may identify the applicant; or (c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned - the name of that other person or any information that may identify that other person. (6) A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after: (a) if the decision is made between 1 January and 30 June (inclusive) in a year - 1 July in that year; or (b) if a decision is made between 1 July and 31 December (inclusive) in a year - 1 January in the following year. (7) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances. 34 I have already referred to the fate of the appellant's application under s 417. 35 Thus, as at 21 March 2003 the appellant was not permitted by the Act (s 48A) to make another application for a protection visa. 36 Nevertheless, that is exactly what the appellant did. On 21 or 25 March 2003 the appellant sent an application for review; but he sent it to the Migration Review Tribunal (the MRT) not to the Tribunal. The application was confusing. It identified the decision the subject of the review sought as 14 May 1999, said to have been notified by letter of 12 June 1999. These dates do not correlate with the material before me. The subclass of visa for which he had applied was said to be visa E - subclass 050, being a bridging visa. Such a visa was refused on 18 March 2003: see [16] above. The application had attached the four page typed statement dated 14 January 1998 dealing with his claims for protection. (The same statement was attached to request considered at [17] above.) The application was received by the MRT on 25 March 2003. The MRT sent the application on to the Tribunal after an officer of the MRT had a conversation with the appellant that was described in a letter from the MRT officer to the Tribunal as follows: On the 25th of March, 2003 I received a phone call from a [appellant's name] regarding an application for review at the RRT, which he had incorrectly completed on an MRT review form. [The appellant] claimed that DIMIA had instructed him to use the MRT form, and that he had sent the form to the MRT by internal Dimia mail on Friday 21 March, 2003. I received the MRT form from [the appellant] late Tuesday afternoon (25th March 2003), and am now forwarding it to you. 37 Shortly thereafter, on 27 March 2003 an officer of the Tribunal returned these papers to the MRT. By this date, 27 March 2003, the Tribunal had received its own fresh application for a protection visa. The Tribunal officer wrote to the MRT in the following terms: [The appellant] lodged an application on an MRT form although he was under the impression that he should have been applying to the RRT so you forwarded it to us. As discussed by phone on 27/3/03 we subsequently received an RRT application from [the appellant] which included copies of recent DIMIA letters. The DIMIA letter dated 18/03/03 is a refusal of bridging visa and advises him that he may lodge a review with the MRT. I am therefore returning the application. I have included copies of the DIMIA papers for your information. 38 On 26 and 31 March 2003 applications for review were lodged with the Tribunal. These contained statements in Turkish and English, including the four page, typed statement dated 14 January 1998. 39 On 4 April 2003 the MRT wrote to the appellant stating that it had no authority to hear any review of the refusal of the bridging visa because the application for review was out of time. 40 On 14 April 2003 the Tribunal decided that it did not have jurisdiction to consider the application for review received by it in March 2003. The Tribunal was of the view that there was no "RRT-reviewable" decision for the purposes of s 411 of the Act and that with the refusal in 1997 of the earlier applications the appellant was not able to make another. 41 The appellant then sought relief under s 39B of the Judiciary Act 1903 (Cth). On 2 May 2003 an application under the Judiciary Act and the Act was filed identifying the decisions the subject of complaint as those of 4 April 2003 and 31 March 2003. The claims of the applicant identified what he was seeking: