Chelliah v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT HILL J: 1 Before the Court is an appeal brought by Mr Chelliah, the appellant, from a decision of a judge of this Court, Stone J, dismissing his application to the Court for judicial review of a decision of the Refugee Review Tribunal (the "Tribunal"). 2 The relevant facts are set out in her Honour's Reasons for Judgment. Suffice it to say here that Mr Chelliah had applied for a protection visa on the basis that he was a person to whom Australia had protection obligations. The application as originally lodged was incomplete. However, the details not initially included in the application form were forwarded to the Minister before a decision was made on the application for a protection visa. 3 The application (referred to here as the "first application") was rejected by a delegate of the Minister on the merits and the delegate's decision was subsequently affirmed by the Tribunal. 4 At the time of the Tribunal's decision the question of the validity of an incomplete application had been the subject of some discussion in this Court, although it could not then have been said to have been finally determined. The appellant was later informed by letter from the Department of Immigration and Multicultural Affairs that his application for a protection visa (the first application) was considered to be invalid and that he was entitled to make a second application, which he did. That second application went to the Tribunal after it had been rejected by a delegate of the Minister. By that time, Full Court authorities had clarified the law so far as it concerned an incomplete application where the missing information was supplied prior to the making of a decision by the Minister or his delegate. 5 A relevant decision was that of the Full Court in Minister for Immigration and Multicultural Affairs v Li [2000] FCA 1456. That case confirmed that where information not initially supplied with the application form when lodged was thereafter supplied before the making of a decision by the Minister or a delegate, the decision of the Minister or delegate was a valid decision. Accordingly, the decision of the Tribunal on a review of that decision was likewise a valid decision. Therefore, a second application on the same grounds could not validly be lodged. 6 The consequence of applying the reasoning in Li was that the applicant had, by the time the delegate made a decision for the first time, lodged a valid application and there had thus been a valid decision by the delegate of the Minister. It followed that there was no power in the applicant to make a second application. Further, there was no jurisdiction in the Tribunal to review a decision of a delegate of the Minister rejecting a second application. It is not suggested here that the Full Court should seek to re-examine the law as decided in Li, even if it were appropriate to do so. There is nothing that suggests that the principle discussed in Li should be now overruled on the ground that it was "clearly wrong". 7 Before her Honour, the Tribunal's decision was also impugned on the basis that there was an estoppel created by virtue of the letter advising Mr Chelliah that his first application for a protection visa was invalid and therefore that having regard to s 48A of the Migration Act 1958 (Cth), the second application, which was made on 9 May 2000, was valid. The misapprehension as to the validity of an incomplete but later completed application continued when the delegate of the Minister rejected the second application on the basis that she was not satisfied the applicant was a person to whom Australia owed protection obligations, having accepted that the first application was invalid. 8 The learned primary Judge rejected the submission on estoppel and dismissed Mr Chelliah's application for judicial review. From the submissions as recorded by her Honour it appears to have been conceded before her that estoppel could not be argued where the representation upon which the estoppel was based involved a question of law. The argument before her Honour appears, thus, to have concentrated on the question whether the issue, as to whether the first application was a valid application with the consequence that the second application was not, involved a question of fact, rather than a question of law. If it involved only a question of fact there was no jurisdiction in her Honour to review the Tribunal's decision. There was by then no room for argument that the Tribunal had jurisdiction to review the decision based on the second application. 9 There are many difficulties in the path of the appellant who sought before us to rely upon an estoppel in the appeal from the decision of the learned primary Judge. Apart from the matter which appears to have been conceded before her Honour, there are difficulties which need not here be resolved as to whether there is a possibility of estoppel arising in a context where a tribunal has to decide as a matter of jurisdictional fact whether it has jurisdiction. It is not easy to see in any event how on ordinary principles of estoppel the Tribunal could possibly be a person bound by representations contained in correspondence passing between parties not including the Tribunal itself. 10 There is nothing that has been said which cast doubt upon her Honour's decision, particularly when regard is had to the concessions made before her Honour. For these reasons I am of the view that the appeal should be dismissed with costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.