Li Wen Han v Minister for Immigration & Multicultural Affairs [2000] FCA 421 | Case summary

The legislation 20 Section 29 provides that, subject to the Act, the Minister may grant a non-citizen a visa to remain in Australia. Section 36 establishes a class of visa to be known as protection visas, a criterion for which is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention. Section 40(1) provides that the Regulations may provide that visas of a specified class may only be granted in specified circumstances. Regulation 2.04 provides that for the purposes of s 40 the only circumstances in which a visa of a particular class may be granted to a person who has satisfied the criteria in a relevant Part of Sch 2 are the circumstances set out in that Part. When one then turns to cl 866 of Sch 2, headed "Subclass 866 Protection", it is seen that amongst the primary criteria to be satisfied "at time of application" (cl 866.21) is that the applicant "claims to be a person to whom Australia has protection obligations under the Refugees Convention and: (a) makes specific claims under the Refugees Convention." (cl 866.211) 21 Section 45(1) provides that subject to the Act and the Regulations a non-citizen who wants a visa must apply for a visa of a particular class. By s 45(2) the Regulations may prescribe "the way for making … (b) an application for a visa of a specified class". Section 46 provides that an application for a visa is valid "if, and only if, (a) it is for a visa of a class specified in the application and (b) it is made in the way required by s 45(2) …". Section 47(1) provides that the Minister "is to consider a valid application for a visa". Sub-sections (3) and (4) provide: "(3) To avoid doubt, the Minister is not to consider an application that is not a valid application. (4) To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa." 22 Thus if an application is not made in the way prescribed by the Regulations it is not a valid visa application under the Act. 23 Regulation 2.07(1) provides that, for the purposes of ss 45 and 46, if an application is required for a particular class of visa, certain matters are set out in the relevant Part of Sch 1. These include "(a) the approved form (if any) to be completed by an applicant". Regulation 2.07(3) provides that an applicant must complete an approved form in accordance with any directions on it. Schedule 1 is headed "Classes of Visas". At the outset it states: "Note This Schedule sets out the specific ways in which a non-citizen applies for a visa of a particular class. An application that is not made as set out in this Schedule is not valid and will not be considered: see the Act, ss 45, 46 and 47." 24 Clause 1126 of Sch 1 is headed "Protection (Class AZ)". Under that heading appears, inter alia, "(1) Form: 866". Regulation 1.18 provides that the Minister may in writing approve forms for use in making an application for a visa. It was accepted that the Form 866 partially completed by the first applicant was approved under Reg 1.18. 25 The foregoing provisions lay down the path leading to grant or refusal of a protection visa. Some other provisions of the Act are relevant. 26 Part 2 Div 3 of the Act is headed "Visas for non-citizens". Subdivision A (ss 28-43) is headed "General provisions about visas". Subdivision AA, headed "Applications for visas", consists of ss 44-51. Subdivision AB, headed "Code of procedure for dealing fairly, efficiently and quickly with visa applications", consists of ss 52-64. By s 54(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". Section 54(2) provides that for the purposes of subs (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 madeor (c) given under s 55 (emphasis added). Section 55 provides that until the Minister has made a decision 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. The Minister may also get any further information he or she considers relevant, including information from the applicant: s 56. 27 Subdivision AC, headed "Grant of visas", comprises ss 65-69. Section 65 relevantly provides: "65(1) After considering a valid application for a visa, the Minister: (a) if satisfied that: (i) … (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and (iii) … (iv) … is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa. (2) …" 28 Section 69 provides: "(1) Non-compliance by the Minister with Subdivision AA or AB in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed. (2) If the Minister deals with a visa application in a way that complies with Subdivision AA, AB and this Subdivision, the Minister is not required to take any other action in dealing with it." 29 Application may be made to the RRT for review of an "RRT-reviewable decision": s 412(1). This expression includes "a decision to refuse to grant a protection visa": s 411(1)(c). A decision of the RRT is a "judicially-reviewable decision": s 475(1)(b). As such, it is subject to review by the Federal Court: s 476. The grounds on which application for review by the Federal Court may be made are set out in s 476, including those in s 476(1)(c), (d) and (e) already referred to. Reference should also be made to s 476(1)(b) which provides as a ground "that the person who purported to make the decision did not have jurisdiction to make the decision". 30 In Minister for Immigration and Multicultural Affairs v "A" (1999) 168 ALR 594 a Full Court (Merkel, Emmett and Finkelstein JJ) was also concerned with an application for a protection visa where no details of the Convention claims had been given. However the case never reached the RRT. The delegate refused the primary application but the application for review by the RRT was not lodged within the specified time (see now Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324). The applicant sought prerogative relief in the High Court and the matter was remitted by Hayne J to the Federal Court. The primary judge set aside the delegate's decision on the grounds that the delegate had failed to discharge his duty to have regard to all the information in the application, had denied procedural fairness, and had made a decision which was unreasonable in the Wednesbury sense. In separate judgments Merkel and Finkelstein JJ held that the application for a protection visa was not a valid application and the decision to refuse the application was accordingly invalid. Emmett J found for the Minister on the basis that the jurisdiction of the Federal Court was excluded by s 485 of the Act. 31 The present case of course is concerned with a decision of the RRT and not of a delegate. Again in contrast to A's case, in the present case details of Convention claims were supplied to the RRT, albeit after the primary application for a protection visa and after the delegate's purported decision. Counsel for the Minister in the present case sought to rely on these factors as distinguishing the Full Court's decision. It will therefore be necessary to look at their Honours' reasoning in some detail. 32 After summarising the provisions of the Act and Regulations to which I have already referred, Merkel J said: "23. The consequence of the foregoing provisions would appear to be that, subject to s 25C of the Acts Interpretation Act 1901 (Cth), an application that is not on an approved form and completed in accordance with the directions in it has not been made in the way prescribed by the regulations. For the purposes of s 45(2) of the Act a duly completed approved form, as a condition prescribed for making an application, is a prescription of the way an application is to be made rather than a specified circumstance in which a visa of a specified class may be granted." (Emphasis in original) 33 Section 25C of the Acts Interpretation Act provides that where an Act prescribes a form then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient. Merkel J has thus, implicitly at least, held that the Act does not manifest a contrary intention so as to exclude s 25C. But it was not suggested in A's case, nor in the present case, that there had been substantial compliance with Form 866. 34 His Honour referred to ss 47, 52, 53, 54, 55 and 56-60 and observed that the detailed prescriptive scheme made it unlikely a court would engraft additional rights under the guise of procedural fairness. His Honour continued: "27. A critical aspect of the statutory scheme in respect of visa applications is the requirement in ss 45, 46 and 47 that it is only to apply in respect of a valid application for a visa. That requirement is re-inforced by s 65 (in Subdivision AC) which provides that, after considering a valid application for a visa, the duty of the Minister is to grant the visa if satisfied that the relevant criteria and conditions have been satisfied and, if not so satisfied, to refuse to grant the visa. Under the statutory scheme there appears to be no power to make a decision to grant or refuse to grant a visa other than after considering a valid application." (Emphasis in original) 35 After referring to s 69 his Honour said: "29. Thus, although non-compliance by the Minister with a provision in Sub-Division AA or AB does not have the consequence that the decision to grant or refuse to grant a visa is not a 'valid decision' under the Act, the preservation of the decision for review is subject to the important qualification that if it is established to have been a 'wrong' decision it can be set aside, as such, on review. As I later explain, if the non-compliance is such that it invalidates the decision, the decision will be a 'wrong one' and therefore liable to be set aside on review." 36 After referring to a number of authorities his Honour concluded (at par 45) that the decision to grant the visa was made in contravention of the requirement of the Act not to consider an invalid application (s 47(3)) and was not authorised by s 65, which only empowers the Minister to grant a visa after considering a valid application for a visa. 37 His Honour then went on to consider whether a visa decision made upon an invalid application was an invalid decision under the Act. 38 His Honour thought s 69(1) to be of no assistance. Section 69(1) preserved the validity of a decision for the purposes of review where there has been non-compliance with subdivisions AA and AB; it did not purport to extend to a decision made in contravention of s 65, which is in subdivision AC. The latter section, his Honour thought, revealed a clear legislative intent that the Minister was not to have the power to grant or to refuse to grant a visa on an invalid application: see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 at par 119. Importantly for the present case his Honour concluded (at par 52): "52. The language of the relevant provisions and the scope and object of the Act lead me to conclude that it was the purpose of the legislature that a decision to grant or refuse to grant a visa applied for on an invalid application is a decision which was made without power and is invalid save to the extent that particular provisions of the Act might expressly or impliedly provide otherwise. For example, in addition to decisions whose validity is preserved, at least for the purpose of review, by s 69(1), it is plain that judicially-reviewable decisions, for the purposes of Pt 8, include decisions made without authority under the Act or without jurisdiction: see s 476(1)(b) and (c). Such decisions, as with decisions covered by s 69, may be intended to have operative effect pending a review of the decision under the Act." (Emphasis added) 39 Turning to the present case, the purported decision of the delegate in the present case was invalid because the Minister had no power to grant, or refuse to grant, a visa on what was plainly an invalid application. But was it an "RRT-reviewable decision" for the purposes of s 411(1)(c)? I think it was. What compels this conclusion is the conferring of power by s 476(1)(b) and (c) on the Federal Court to review purported decisions made without jurisdiction or decisions not authorised by the Act or the Regulations. The structure of the review process - from Minister to RRT to Federal Court - necessarily means that the Court was intended to have review powers in respect of decisions of the RRT where the decision at the first level was made beyond jurisdiction but was not corrected or set aside by the RRT. The Court could not have direct review powers over the first level decision because an RRT-reviewable decision is not a judicially-reviewable decision: s 475(2)(d). Since RRT review is by way of rehearing it is understandable that no grounds are specified in the Act. But if an allegedly invalid decision of a delegate is treated as an RRT-reviewable decision, which the RRT may or may not set aside, s 476(1)(b) and (c) have room to operate. The Court on review can decide whether the RRT was correct in its decision as to the invalidity or otherwise of the primary decision. 40 So viewed, the Act replicates for the purposes of RRT review the principle established in relation to the more general jurisdiction of the Administrative Appeals Tribunal. The right of appeal from a "decision made in the exercise of powers conferred by (an) enactment" (Administrative Appeals Tribunal Act 1975 (Cth) s 25(1)(a)) extends to a decision made in purported exercise of powers: Collector of Customs v Brian Lawler Automotive Pty Ltd (1979) 2 ALD at 4-5 per Bowen CJ and at 20-25 per Smithers J. Bowen CJ noted (at 5): "There is nothing unusual in holding that an administrative decision which is legally ineffective or void is susceptible of appeal: see Calvin v Carr (1979) 22 ALR 417." 41 Counsel for the Minister relied on the following passage from Merkel J's judgment: "49. In my view s 69 does not, of itself, operate to validate a visa decision purportedly made under s 65 on an invalid application. I accept that considering an invalid application, contrary to the requirement in s 47(2) not to do so, is a non-compliance by the Minister for the purpose of s 69(1). If the non-compliance related only to the issue of considering an invalid application it need not necessarily result in invalidity on a review of the decision. Thus, if information omitted from an application is later provided, consideration of the invalid application need not result in invalidity of the visa decision. While it is unnecessary to consider that situation in the present case it is clearly arguable that the subsequent provision of the information might overcome the initial invalidity. The answer to that question would involve consideration of the role of ss 54(1), 54(2)(c) and 55 which require the Minister to have regard to all of the information 'in the application' which, for the purposes of s 54(1), includes information provided subsequently under s 55. It may be that in such circumstances a valid application is to be regarded as having been made when the subsequent information is provided: see Phanouvong v Minister for Immigration and Multicultural Affairs [1999] FCA 1489 at [25]." (Emphasis in original) 42 I would respectfully doubt whether that is the case, given the explicit requirement for the visa application form itself to contain, amongst other things, details of the specific Convention claims: s 40(1), reg 2.04, sch 2, cl 866. Section 54(1) proceeds on the assumption that there is an application in existence, which must mean a valid application. Section 55 is concerned with "additional relevant information". But additional to what? The answer must be, additional to the information contained in a valid application, the statutory precondition for the valid grant or refusal of a visa. But in any event in the present case there was no further information provided before the delegate's decision. Therefore that decision was invalid, and the RRT should have so found. 43 Counsel for the Minister relied on the decision referred to by Merkel J, Phanouvong v Minister for Immigration and Multicultural Affairs [1999] FCA 1489. In that case a protection visa application form was lodged without any details as to the Convention claims. Part C of Form 866, containing the relevant details, was subsequently lodged with the Department but apparently then misplaced. The delegate refused the application noting that the applicants "had not lodged a Part C". The applicants applied to the RRT for review. Prior to the end of the RRT hearing, and before its decision rejecting the application, the Part C was supplied. It was argued before Finn J that no valid visa application had been made and that the RRT in lieu was obliged to concern itself, but did not, with whether there was a valid visa application to be considered because it was, relevantly, in the same position as the delegate. 44 Finn J said (at par 24): "… it is clear that the 'application' considered by the delegate was not a valid application and ought not to have been considered: s 47(3). Nonetheless the decision made by the delegate, though made in non-compliance with s 47(3) is, I consider, a valid decision by virtue of the force of s 69(1) of the Act albeit it is valid unless and until set aside by the Tribunal on application to it: cf Minister for Immigration and Multicultural Affairs v Hayman [1999] FCA 217 at par 21. Furthermore, in the usual case (i) because the Tribunal has the same powers and discretions as the delegate and hence the s 47(3) limitation on its consideration of an invalid application, but (ii) because its decisions are not protected by an equivalent provision to s 69(1) of the Act, its review of a delegate's decision made in non-compliance with s 47(3) ought result in that decision being set aside. In its place a new decision should be substituted acknowledging that, there being no valid application, the 'application' before the Tribunal could not be considered." 45 It was accepted by counsel for the Minister in the present case that in the light of the subsequent decision in A's case the first reason could not be sustained. 46 The second reason would have led to the RRT's decision being set aside, albeit on a somewhat different basis than that which I have suggested. However his Honour went on to say: "25. Insofar as the Tribunal is concerned the present case, though, is not the usual case. The Tribunal was alert to the deficiency in the Phanouvongs' applications. It required that the Part Cs be brought to the hearing; it obtained them at the hearing; and it was an application embodying those Part Cs that was the subject of proceeding before the Tribunal. While the circumstances are unusual, the conclusion is unavoidable that the applications 'considered' by the Tribunal were valid applications. Importantly in relation to the Part Cs sought by, and provided to, it the Tribunal engaged in 'an active intellectual process directed at [those documents]'. cf Tickner v Chapman (1995) 57 FCR 451 at 462 per Black CJ. In those circumstances, it was open to the Tribunal to exercise all of the powers and discretions conferred by the Act on the delegate in relation to those now valid applications: s 415(1)." 47 I respectfully disagree. A's case turns on the critical jurisdictional importance of the lodgment, at the time of application, of a protection visa application in Form 866 containing the required details of the Convention claims. Although it conducts a rehearing de novo and exercises all the powers and discretions that are conferred by the Act on the person who made the RRT-reviewable decision (s 415(1)), the RRT is a reviewing body. It is plainly not intended to have, as it were, a first instance jurisdiction. Applications for a protection visa must be made to, considered by and decided upon by the Minister: ss 29, 46, 47 and 65. 48 At first blush, ss 55 and 56 strike the reader as somewhat otiose. When a person seeks some form of government licence or benefit, it must very often happen that after the initial application is lodged the applicant will wish to provide further information to the decision-maker. And the decision-maker may often wish to seek further information from the applicant. In the particular case of applications for visas, why did those drafting the Act think it necessary to go to the trouble of spelling out explicit provisions for what might be regarded as mundane and often inevitable steps in any administrative decision-making process? 49 The answer I think is to be found in the special importance which this legislative scheme attaches to the initial application. When lodged, the completed form must contain all the information required. In the case of a protection visa application for example, the completed form must set out the Convention claims. Otherwise there is simply not an application at all. The detailed process laid down by the Act and Regulations has not validly commenced. In that setting the legislative drafters might understandably have turned their minds to the possibility of an argument that in the absence of some specific provision the whole of the applicant's case had to be included in the application form when lodged. So, consistent with the policy of meticulously spelling out every step in the process and thus avoiding argument and uncertainty, the scheme says in effect that applicants must, at the time of lodging the application, put their case in the way the form requires, but they are able to add to it. 50 It seems unlikely that Parliament intended that, notwithstanding the critical importance of the initial application form in the legislative scheme, ss 54 and 55 were to have the effect that the nullity of an invalid application form can be fixed up by the subsequent supply of information, even after the Minister's decision. 51 There is in my opinion no power in the Minister to treat a non-complying "application" as remedied by some subsequent document. No such power is conferred by the Act on the person who makes the RRT-reviewable decision. Therefore there is no such power for the RRT to exercise: s 415(1). 52 The further amended application did not in terms rely on the ground specified in s 476(1)(b). That would seem to be the most appropriate ground. However the ground in s 476(1)(c) is also applicable and the applicants are entitled to succeed.

Li Wen Han v Minister for Immigration & Multicultural Affairs

At a glance

Court

Decision date

Before

Source

Judgment (10 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (8)

Cited By (17)